Case 1:13-cv-00260-JEB Document 1 Filed 02/27/13 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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ELECTRONIC PRIVACY INFORMATION CENTER )

1718 Connecticut Ave., NW

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Suite 200

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Washington, DC 20009

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Plaintiff,

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~

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) Civil Action No.

DEPARTMENT OF HOMELAND SECURITY

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Washington, DC 20528

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Defendant

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COMPLAINT FOR INJUNCTIVE RELIEF I . This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (20 12), for injunctive and other appropriate relief, seeking the release of agency records requested by the Electronic Privacy Information Center ("EPIC") from the Department of Homeland Security ("DHS"). 2. This lawsuit challenges the failure ofDHS to disclose documents in response to EPIC's July 10, 2012, Freedom oflnformation Act request. EPIC's FOIA Request sought agency records related to specific communications shutdown procedures ("Standard Operating Procedure 303" or " SOP 303") approved by the National Communications System. Defendant has failed to comply with its statutory deadline and has failed to disclose a single record. EPIC asks the Court to order immediate disclosure of all responsive records.

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Jurisdiction and Venue

3. This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(A)(vii), 5 U.S.C. § 552(a)(4)(B), and 5 U.S.C. § 552(a)(6)(C)(i) (2012). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (2012). Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B)

(2012).

Parties

4.

Plaintiff EPIC is a public interest research organization incorporated as a not-for-

profit corporation in Washington, D.C. EPIC conducts oversight of government activities and

policies and analyzes their impact on civil liberties and privacy interests. Among its other

activities, EPIC publishes books, reports, and a bi-weekly electronic newsletter. EPIC also

maintains a popular Internet site, http://www.epic.org, which contains extensive information on

current privacy issues, including documents obtained from federal agencies under the FOIA.

EPIC routinely and systematically disseminates information to the public through its website and

other media outlets. This Court recognized EPIC's role as a representative ofthe news media in

EPIC v. Dep 't ofDef ense, 241 F. Supp. 2d . 5 (D.D.C . 2003).

5.

Defendant DHS is a Department ofthe Executive Branch of the U.S. government

and an agency within the meaning of 5 U.S.C. § 552(f)(l ). Until President Obama dissolved the

NCS through Executive Order 13618 on July 6, 2012, DHS included a component called the

National Communications System ("NCS"). In turn, the NCS oversaw the work of two sub-

components: the President's National Security Telecommunications Advisory Committee

("NSTAC") and the National Coordinating Center ("NCC").

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FACTS NCS Approved Standard Operating Procedure 303 6. In its 2006-2007 Issue Review, the NSTAC revealed that it had approved SOP 303 , although the details of SOP 303 were not released to the public. 7. The Issue Review explained that SOP 303 codifies "a shutdown and restoration process for use by commercial and private wireless networks during national crises." 8. The Issue Review further explained that SOP 303 would be implemented under the coordination of the NCC 9. The decision to shut down service would be made by State Homeland Security Advisors or "representatives of the DHS Homeland Security Operations Center," but would require the permission of the NCC. The Review states, "Once the request has been made by these entities, the NCC will operate as an authenticating body, notifying the carriers in the affected area of the decision." 10. The Issue Review indicates that NCC will determine whether a shutdown is necessary by asking the requestor "a series of questions." The NCC will follow the same procedure in order to reestablish service "[a]fter making the determination that the shutdown is no longer required. 11. On July 3, 2011 , a Bay Area Rapid Transit ("BART") officer in San Francisco, CA, shot and killed a homeless man, Charles Hill. The officer alleged later that Hill had attacked him with a knife and that he had acted in self-defense. 12. The death sparked a major protest against BART on July 11, 2011. Though the protests interrupted BART service at several transit stations, no one was injured. 13. A second protest was planned one month later, on August 12,2011. However, this protest was cut short after BART officials cut off all cellular service inside four transit
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stations for a period of three hours. This act prevented any individual on the station platform

from sending or receiving phone calls, messages, or other data. 14. A 2011 Report from the White House asserted that the National Security Council

and the Office of Science and Technology Policy have the legal authority to control private communications systems in the United States during times of war or other national emergencies.
15. On April30, 2012, the Federal Communications Commission requested public comment on proposed procedures to guide " intentional interruption of wireless service by

government actors for the purpose of ensuring public safety." 16. On July 6, 2012, the White House approved an Executive Order seeking to ensure
the continuity of Government communications during a national crisis. As part of the Executive Order, DHS was granted the authority to seize private facilities, when necessary, effectively

shutting down or limiting civilian communications. EPIC's FOIA Request

17. Paragraphs 1-16 above are hereby incorporated by reference as if set forth fully

herein. 18.

On July 10, 2012, EPIC transmitted, via certified mail, a FOIA request to the

Chief Privacy Officer/ChiefFOIA Officer in the Privacy Office at DHS, seeking records

("EPIC ' s FOIA Request"). 19. EPIC's FOIA Request asked for the following agency records: a) The full text of Standard Operating Procedure 303 ; b) The full text of the pre-determined "series of questions" that determines if a shutdown is necessary;

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c) Any executing protocols or guidelines related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.
20. In the Request, EPIC asked the DHS to expedite its response to the Request because EPIC is primarily engaged in disseminating information and the request pertained to a matter about which there was an urgency to inform the public about an actual or alleged government activity. EPIC made this request pursuant to 5 U.S.C. § 552(a)(6)(E)(v)(ll). EPIC based such a request on the urgency for the public to obtain information about DHS' authority to approve the shutdown of wireless networks in the United States. To illustrate this public interest need, EPIC cited extensive news coverage of the July 6, 2012 Executive Order that granted DHS expanded authority to seize control of private communications facilities during times of national crisis, as well as coverage of numerous cybersecurity bills under consideration that would extend DHS ' cyber authority.
21. In the Request, EPIC also requested "News Media" fee status under the FOIA based on its status as a " representative ofthe news media." EPIC further requested waiver of all duplication fees because disclosure of the records requested will contribute significantly to public understanding of the operations or activities ofthe government.
22. On July 24, 2012, DHS acknowledged receipt of EPIC's FOIA Request. 23. In its acknowledgment, DHS responded that it would conditionally grant a fee waiver, based on a "sampling of the responsive documents received from the various DHS program offices as a result ofthe searches conducted in response" to EPIC's Request.
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24. In its acknowledgment, DHS did not make a determination as to EPIC ' s request for expedited processing, but invoked a 10-day extension due to the "unusual circumstance" that EPIC's FOIA Request is " of substantial interest" to two or more components ofDHS or another agency.
25. DHS also indicated that the appropriate components had been queried. 26. DHS assigned EPIC's FOIA Request reference number DHS/OS/PRIV 12-0598. 27. DHS issued a final response by letter dated August 21,2012. DHS informed EPIC that the agency was "unable to locate or identify any responsive records." DHS also notified EPIC of EPIC ' s right to appeal the decision within 60 days . 28 . On September 13,2012, EPIC transmitted, via certified mail, an administrative appeal to DHS ("EPIC ' s Administrative Appeal"), appealing the sufficiency ofthe DHS ' search regarding EPIC ' s FOIA Request. 29. EPIC's Administrative Appeal also challenged DHS ' s practice of politically vetting FOIA requests and requested that DHS explain why the Request was "of substantial interest," what "substantial interest" indicated in this context, and which entities were consulted prior to the issuance of a final determination on the substance of EPIC ' s FOIA Request. 30. EPIC's Administrative Appeal noted the reference number assigned to EPIC's FOIA Request by DHS . 31 . EPIC ' s Administrative Appeal renewed EPIC ' s request for "News Media" fee status and a waiver of all duplication fees . 32. EPIC's Administrative Appeal also renewed EPIC ' s request for expedited treatment, and requested expedited treatment of the Appeal.
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33. In a letter dated October 25,2012, DHS acknowledged EPIC's Administrative

Appeal. 34 .

DHS assigned the Administrative Appeal reference number 2013-HQAP-00004.

35. In its October 25 letter, DHS further stated that there would be delay in resolving

EPIC's Administrative Appeal, since DHS had received "a high number ofFOIA requests" and was experiencing a "backlog."
36. As of November 23 , 2012, DHS has failed to make a determination with respect

to EPIC's Appeal within twenty days after receipt of the appeal , as prescribed by 5 U.S.C . §

552(a)(6)(A)(ii) (2012). 37. Through the date of this pleading, DHS has failed to produce any documents in
response to EPIC's FOIA Request. 38. DHS's failure to respond within the twenty-day statutory limit constitutes a

constructive denial ofEPIC '·s Appeal.
Count I Violation of FOIA: Failure to Comply With Statutory Deadlines

39. Paragraphs 1-38 above are hereby incorporated by reference as if set forth full y

herein. 40. As described above, Defendant DHS ' failure to respond to EPIC's Administrative
Appeal violated the statutory deadline imposed by the FOIA set forth in 5 U.S.C. § 552 (a)(6)(A)(ii).

41. EPIC has exhausted the applicable administrative remedies with respect to EPIC's FOIA Request. 5 U.S.C. § 552(a)(4)(B).
42. EPIC is entitled to injunctive relief compelling the release and disclosure of the

requested agency records.

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Count II Violation of FOIA: Failure to Make Reasonable Efforts to Search for Responsive Records
43 . Paragraphs 1-42 above are hereby incorporated by reference as if set forth fully herein.
44. As described above, DHS's failure to make reasonable efforts to search for responsive documents violates FOIA, 5 U.S.C. § 552(a)(3)(C).
45. EPIC has exhausted the applicable administrative remedies with respect to EPIC ' s FOIA Request. 5 U.S.C. § 552(a)(4)(B).
46. EPIC is entitled to injunctive relief compelling the release and disclosure of the requested agency records.
Count III Violation of FOIA: Unlawful Withholding of Agency Records 47. Paragraphs 1-46 above are hereby incorporated by reference as if set forth fully herein. 48. As described above, DHS has failed to comply with statutory deadlines and failed to make responsive records available to EPIC. 49. As a result ofDHS' unlawful delay and failure to conduct a reasonable search, the agency has withheld responsive agency records from EPIC in violation ofFOIA, 5 U.S.C. § 552(a)(3)(A). 50. EPIC has exhausted the applicable administrative remedies with respect to EPIC's FOIA Request. 5 U.S.C. § 552(a)(4(B). 51. EPIC is entitled to injunctive relief compelling the release and disclosure of the requested agency records.
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Requested Relief WHEREFORE, Plaintiff prays that this Court:
A. order Defendant to conduct a reasonable search for all responsive records; B. order Defendant to promptly disclose to Plaintiff responsive agency records; C. award Plaintiff its costs and reasonable attorneys' fees incurred in this action
pursuant to 5 U.S.C. § 552(a)(4)(E) (2010); and E. grant such other relief as the Court may deem just and proper.

Dated: February 27, 2013

Respectfully submi ted,
By: __~------~~+--r------Ginger McCall, Esquire ( ar #10011 04) David Jacobs, Esquire* Julia Horwitz, Esquire** ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 (202) 483-1140 (telephone) (202) 483-1248 (facsimile)

* David Jacobs is barred in New York State. •• Julia Horwitz is barred in Maryland.
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 </s> Case 1:13-cv-00260-JEB Document 10 Filed 06/28/13 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

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ELECTRONIC PRIVACY

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INFORMATION CENTER,

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Plaintiff,

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)

v.

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Case No. 1:13-CV-260 (JEB)

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DEPARTMENT OF HOMELAND

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SECURITY,

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Defendant.

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____________________________________)

MOTION FOR SUMMARY JUDGMENT

Defendant hereby moves for summary judgment under Federal Rule of Civil

Procedure 56. The bases for this motion are explained in the accompanying

memorandum.

Dated: June 28, 2013

Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General
RONALD C. MACHEN JR United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch, Civil Division
/s/ Justin M. Sandberg JUSTIN M. SANDBERG (Ill. Bar No. 6278377) Trial Attorney U.S. Dept. of Justice, Civil Division, Federal Programs Branch
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Case 1:13-cv-00260-JEB Document 10 Filed 06/28/13 Page 2 of 23 20 Mass. Ave., NW, Rm. 7302 Washington, DC 20001 (202) 514-5838 phone (202) 616-8202 fax justin.sandberg@usdoj.gov Attorneys for Defendant
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

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ELECTRONIC PRIVACY

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INFORMATION CENTER,

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Plaintiff,

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v.

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Case No. 1:13-CV-260 (JEB)

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DEPARTMENT OF HOMELAND

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SECURITY,

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Defendant.

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____________________________________)

MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT

INTRODUCTION

Plaintiff Electronic Privacy Information Center (EPIC) has sued the Department of

Homeland Security (DHS) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. This

suit stems from EPIC’s request for records detailing a process for shutting down wireless

networks to prevent, among other things, the remote detonation of bombs. The complaint raises

three claims, but one – based on DHS’s alleged failure to meet statutory deadlines, Compl. ¶¶

39-42 – has been rendered moot by the filing of this motion. See Atkins v. Dep't of Justice, 1991

WL 185084, at *1 (D.C. Cir. Sept. 18, 1991); Muttitt v. Dep’t of State, 2013 WL 781709, *9

(D.D.C. March 4, 2013). The remaining claims raise two basic questions: (1) did the agency

conduct an adequate search; and (2) did the agency properly withhold any responsive documents

that are subject to the FOIA. The answer to both questions is “yes.” The agency conducted an

adequate search – it located the only document subject to the FOIA that is responsive to EPIC’s

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request – and has properly withheld portions of that document under Exemptions 6, 7(C), 7(E), 7(F).
As DHS located the sole document responsive to the FOIA request, EPIC’s challenge to the sufficiency of the search should be dismissed as moot. In the alternative, the Court should enter judgment in DHS’s favor because it conducted a search reasonably calculated to locate responsive records. The Court should also enter judgment in DHS’s favor with respect to its decision to withhold the document in part.1
FACTUAL AND PROCEDURAL BACKGROUND EPIC submitted a FOIA request to DHS seeking three specific categories of records:
1) The full text of Standard Operating Procedure 303; 2) The full text of the pre-determined ‘series of questions’ that
determines if a shutdown is necessary; [and] 3) Any executing protocols or guidelines related to the
implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations. EPIC FOIA Request, July 10, 2012, at 3 (attached as Ex. 1). Generally speaking, Standard Operating Procedure (SOP) 303 describes a “‘shutdown and restoration process for use by commercial and private wireless networks during national crisis.’” Id. (quoting the National Security Telecommunications Advisory Committee [NSTAC], NSTAC Issue Review 2006-07 at 139 (2007) available at http://www.ncs.gov/nstac/reports/2007/2006-2007%20NSTAC%20Issue % 20Review.pdf.). More specifically, SOP 303 details a process for the “deactivation of wireless networks” to “deter the triggering of radio-activated improvised explosive devices.” Declaration of James V.M.L. Holzer, Senior Director of FOIA Operations for the DHS Privacy Office, June 28, 2013, ¶ 25 (attached as Ex. 2).
1 DHS is providing EPIC with the non-exempt portions of the record today. 2

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DHS conducted a search for responsive documents subject to the FOIA but initially located none. Letter from Mia Day, DHS FOIA Program Specialist, to Amie L. Stepanovich, Assoc. Litigation Counsel, EPIC, Aug. 21, 2012 (attached as Ex. 3). (These searches are described below and in the in the attached Holzer Declaration.) EPIC appealed the agency’s determination that there were no responsive documents subject to the FOIA, arguing that DHS had failed to perform an adequate search. EPIC Admin. Appeal, Sept. 13, 2012 (attached as Ex. 4). On appeal, the Office of the Chief Administrative Law Judge for the U.S. Coast Guard, which handles certain FOIA appeals for DHS, concluded that DHS had not sufficiently demonstrated the adequacy of its search. Decision Letter from Joanna Sherry, Attorney Advisor, Office of the Chief ALJ, to Stepanovich, March 25, 2013, at 1 (attached as Ex. 5). The matter was remanded to the agency for further review. Id. After this administrative remand, DHS conducted additional searches. The agency located the only responsive document subject to the FOIA – a copy of SOP 303. Holzer Decl. ¶¶ 19, 21. DHS is withholding large portions of this document under FOIA Exemptions 7(E) and 7(F), and smaller segments under Exemptions 6 and 7(C).
STANDARD OF REVIEW Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). FOIA actions are typically resolved on summary judgment. Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007). With respect to a claim regarding the adequacy of a search, a court may enter summary judgment based solely on information in an agency declaration when it describes in reasonable detail a search reasonably calculated to uncover all
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relevant documents. Thornton-Bey v. Exec. Office for U.S. Attorneys, 844 F. Supp. 2d 159, 163 (D.D.C. 2012). With regard to exemption claims, an agency declaration suffices when the declaration describes “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record [ ]or by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Agency declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks omitted).
ARGUMENT I. DHS Performed A Search Reasonably Calculated to Discover Responsive
Documents On summary judgment in a FOIA case, the agency must demonstrate that it has conducted an adequate search. To do so, it must explain the “scope and method of the search” in “reasonable detail[,]” but need not provide “meticulous documentation [of] the details of an epic search.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). The agency must show “that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “There is no requirement that an agency search every record system.” Id. Moreover, “the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (italics in original); see also Yelder v. Dep’t of Defense, 577 F. Supp. 2d 342, 344-46 (D.D.C. 2008). “[A] search need not be
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perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request.” Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). Conducting a “reasonable” search is a process that requires “both systemic and case specific exercises of discretion and administrative judgment and expertise.” Schrecker v. Dep’t of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003) (quoting Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)).
As a threshold matter, EPIC’s challenge to the sufficiency of the search is moot. A plaintiff must establish that the court has jurisdiction over each claim. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352-54 (2006). A claim is moot if there is no meaningful relief that a court can grant. United States v. Garde, 848 F.2d 1307, 1309 (D.C. Cir. 1988). Other than ordering DHS to more specifically describe the search that it already conducted, the only relief that the Court could grant to EPIC with regard to its sufficiency-of-the-search claim would be an order remanding the case to the agency and instructing it to perform a reasonable search. See People for the Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs, 800 F. Supp. 2d 173, 178 n. 2 (D.D.C. 2011). But such an order would not provide meaningful relief here because DHS has already located the only information sought by EPIC. EPIC sought only SOP 303 and the two closely related categories of implementing documents (i.e., those containing the full text of the authentication questions and any executing protocols). EPIC FOIA Request at 3 (attached as Ex. 1). It did not seek drafts of these documents, internal emails discussing these documents, or anything else. See id. DHS located SOP 303, which contains all three categories of records sought by EPIC. As the Holzer declaration explains, the component of DHS that authored the document, and which implements it, stated that “there are no other documents that contain either the full text of the questions or any executing protocols or guidelines.” Holzer
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Decl. ¶ 19. Thus, DHS found the documents requested by EPIC, there is nothing left to search for, and the claim is moot.
In any case, DHS performed a search reasonably calculated to produce the information requested. Upon receiving the FOIA request, DHS’s Privacy Office, which directs the agency’s FOIA operation, contacted the four components of the agency most likely to have responsive records: (1) the DHS Management Directorate, (2) the Office of the Chief Information Officer (OCIO), (3) the Under Secretary for Management, and (4) the National Protection and Programs Directorate (NPPD). Holzer Decl. ¶¶ 10, 12. The Management Directorate and the Under Secretary’s offices were contacted because each office has a “broad portfolio” of responsibilities and, consequently, “often will know about a policy, procedure or initiative.” Id. ¶¶ 12, 13. The Privacy Office contacted the OCIO because the request related to communications and that office “is often involved in, and consulted on, information and communication issues.” Id. ¶ 13. Finally, the Privacy Office contacted the NPPD because the FOIA request specifically mentioned a former organization within the NPPD, namely, the National Communications System, and a current organization within the NPPD, the National Coordinating Center for Communications. Id. ¶10; EPIC FOIA Request at 1 (attached as Ex. 1).
The Management Directorate, the OCIO, and the Under Secretary’ s office each conducted searches for responsive records. “These offices do not have one database to search for records that are responsive to [FOIA] . . . requests.” Holzer Decl. ¶ 15. Thus, each searched “shared computer drives, Share Point sites, and emails for information about the requested records.” Id. As the declaration explains, “[t]hese are the storage places where DHS employees would typically place information about the products they are working on as well as copies of any final products . . . .” Id. They searched using the search terms “Standard Operating
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Procedure 303” and “SOP 303.” Id. None of the offices located a record subject to the FOIA responsive to EPIC’s request. Id. ¶ 16.
The NPPD initially declined to search, stating that it had no records responsive to the request. Holzer Decl. ¶ 11. After the ALJ remanded the matter to the agency in response to EPIC’s administrative appeal, the Privacy Office again approached the NPPD. Id. ¶ 19. At that time, the NPPD recognized that it had erred in responding to the Privacy Office’s initial inquiry: The NPPD had confused the documents sought by EPIC’s request with those sought in a different, but similar, request submitted by another party. Id. ¶ 11. The NPPD then searched and located a copy of SOP 303. Id. ¶ 19. It also recognized that SOP 303 contained all three categories of information sought by EPIC, and that no other document contained these narrow categories of information. Id. ¶¶ 19, 21.
This description of the search, along with the additional details included in the declaration, establish that DHS conducted a search reasonably calculated to locate the information requested. The Holzer declaration identifies the DHS components most likely to have responsive material; the reason those components were likely to have responsive material; the general processes employed in conducting the search for documents, including the search terms used; and the record located – the SOP. The declaration also explains that DHS concluded its search after locating the SOP because it is the only potentially responsive record; no other records contain the narrow categories of information sought by plaintiff. Concluding the search at that point was reasonable because “the reasonableness of an agency’s search [is] based on what the agency knew at its conclusion rather than what the agency speculated at its inception,” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998), and at the conclusion, the agency knew that it had the SOP and that “are no other documents that contain the full text of the
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questions or any executing protocols,” Holzer Decl. ¶ 21. Thus, Mr. Holzer’s declaration provides “in reasonable detail the scope and method of the search conducted by the agency [and] will suffice to demonstrate compliance” with FOIA. Perry, 684 F.2d at 127. DHS, through its various components, “made a good faith effort to search for the records requested,” and “its methods were reasonably expected to produce the information requested,” Kidd v. Dep’t of Justice, 362 F. Supp. 2d 291, 294 (D.D.C. 2005) (internal quotations and citation omitted).
II. SOP 303 Is Exempt, in Part, from Disclosure A. Exemption 7(E) Shields the Document Sought From Disclosure
DHS has properly withheld SOP 303 in part because releasing the withheld portions would reveal a technique for law enforcement, specifically, for preventing the use of wireless networks to detonate bombs that would endanger persons and/or property.2
Exemption 7 applies to records “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). “But it exempts such documents from disclosure only to the extent that production of the information might be expected to produce one of six specified harms.” Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987). The FOIA lists the harms in discrete subsections. Subsection 7(E) exempts documents or information that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In short, this is a two-part inquiry: DHS must “demonstrate[ ] both the threshold law enforcement purpose and the danger that at
2 Count III of the complaint could be read to suggest that EPIC is entitled to summary judgment because DHS did not meet statutorily imposed deadlines. Even if DHS failed to meet the deadlines, this suggestion is wrong. Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 68 (D.D.C. 2003) (“[A] lack of timeliness or compliance with FOIA deadlines does not preclude summary judgment for an agency, nor mandate summary judgment for the requester.”).
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least one of the specified harms [– here, the one identified in 7(E) –] would flow from disclosure.” Keys, 830 F.2d at 340. DHS satisfies this burden.
To establish the first part of the inquiry, i.e., that the document was compiled for law enforcement purposes, DHS need only make a colorable claim that there is a rational “nexus between the agency’s activity” underlying the creation of the document and the agency’s “law enforcement duties.” Id.; see also Tax Analysts v. IRS, 294 F.3d 71, 76-79 (D.C. Cir. 2002). The range of law enforcement purposes falling within the scope of Exemption 7 includes law enforcement activities designed to prevent crimes and terrorist attacks: “[S]teps by law enforcement officers to prevent terrorism surely fulfill ‘law enforcement purposes,’” Milner v. Dep’t of Navy, 131 S.Ct. 1259, 1272 (2011) (Alito, J., concurring); see also Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982) (including “the maintenance of national security” as a law enforcement purpose); Pub. Emp. for Envtl. Responsibility v. U.S. Section Int’l Boundary and Water Comm'n, 839 F.Supp.2d 304, 327 (D.D.C. 2012) (shielding plans for responding to dam failures); U.S. News & World Report v. Dep’t of the Treasury, No. 84-2303, 1986 U.S. Dist. LEXIS 27634, at *5 (D.D.C. Mar. 26, 1986) (protecting Secret Service’s contract specifications for President’s armored limousine); Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313, 1318-20 (D. Utah 2003) (exempting from disclosure inundation maps, which show the effect of dam failure); Asian Law Caucus v. DHS, No. 08-00842, 2008 WL 5047839, at *4 (N.D. Cal. Nov. 24, 2008) (protecting from disclosure documents with details about terrorism watch lists); Gordon v. FBI, 388 F. Supp. 2d 1028, 1035-36 (N.D. Cal. 2005) (same); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 181-82 (D.D.C. 2004) (approving withholding of “firearm specifications” and “radio frequencies” used by agents protecting Secretary of Commerce); Voinche v. FBI, 940 F. Supp. 323, 329, 332 (D.D.C. 1996) (allowing
9

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the withholding of documents regarding the Supreme Court’s security measures). This makes sense because “[t]he ordinary understanding of law enforcement includes not just the investigation and prosecution of offenses that have already been committed, but also proactive steps designed to prevent criminal activity and to maintain security.” Milner, 131 S. Ct. at 1272 (Alito, J., concurring).
What is more, courts defer to a law enforcement agency’s assertion that information or documents were compiled for a law enforcement purpose because government agencies “typically go about their intended business.” Pratt, 673 F.2d at 417-18. And “DHS . . . [is] unquestionably [a] federal law enforcement agenc[y].” Nat’l Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency, 811 F. Supp. 2d 713, 744-45 (S.D.N.Y. 2011).
DHS compiled SOP 303 for a law enforcement purpose. Holzer Decl. ¶ 20 (“The SOP was compiled for a law enforcement purpose . . . .”). SOP 303, which was drafted by a component of DHS, is “a homeland security procedure primarily intended to efficiently and effectively deter the triggering of radio-activated improvised explosive devices . . . that would endanger life and property.” Holzer Decl. ¶¶ 20, 25. As established by the numerous cases cited above, efforts to prevent terrorism, like the one enshrined in SOP, constitute an essential law enforcement activity. Indeed, “[p]articularly in recent years, terrorism prevention and national security measures have been recognized as vital to effective law enforcement efforts in our Nation.” Milner, 131 S. Ct. at 1272 (Alito, J., concurring). And there is a self-evidently rational “nexus” between this activity – i.e., instituting a process for shutting down wireless networks to prevent bombings – and the Department of Homeland Security’s law enforcement duties: DHS exists to keep the country safe and preventing bombings does just that. See Keys, 830 F.2d at
10

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340. Finally, even if there were some doubt about whether DHS compiled SOP 303 for a law enforcement purposes (there is not), that doubt would be resolved in DHS’s favor given that it is a law enforcement agency. See Pratt, 673 F.2d at 417-18. Thus, DHS has made the threshold showing for invoking Exemption 7 by demonstrating that SOP 303 was “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). The inquiry, then, moves to step two, establishing the existence of the harm described in subsection 7(E).
Exemption 7(E) protects law-enforcement documents that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Exemption 7(E) protects from disclosure techniques and procedures used to prevent and protect against crimes, as well as techniques and procedures used to investigate crimes after they have been committed. See, e.g., U.S. News & World Report, 1986 U.S. Dist. LEXIS 27634, at *5-6. Exemption 7(E) does not require a particular determination of harm that would result from disclosure of specific records or information; rather, the exemption categorically protects information related to law enforcement techniques. See Smith v. Bureau of Alcohol, Tobacco & Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997) (“Exemption 7(E) provides categorical protection to information related to law enforcement techniques.”); Fisher v. Dep’t of Justice, 772 F. Supp. 7, 12 n.9 (D.D.C. 1991), aff’d, 968 F.2d 92 (D.C. Cir. 1992).
Releasing SOP 303 would result in the disclosure of a law enforcement technique. The technique at issue here is DHS’s technique for coordinating an orderly process for disabling a wireless telecommunications network to prevent, among other things, the use of the network to remotely detonate an explosive device. Holzer Decl. ¶ 25. “SOP 303 establishes a protocol for
11

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verifying that circumstances exist that would justify shutting down wireless networks . . . [and] provides a step-by-step process for the orderly shut-down of wireless networks following verification of the facts and appropriate weighing of the circumstances.” Id. This is undoubtedly a technique, i.e., a “procedure” or “a particular way of doing or of going about the accomplishment of something.” See Webster's Third New International Dictionary (1986). And while such a technique might not fit within some crabbed notions of law enforcement techniques, “[i]t is inconceivable . . . that Congress meant to afford [preventative law enforcement] activities any less protection from disclosure simply because they do not fit within the traditional notion of investigative law enforcement techniques. Indeed, it is difficult to imagine agency procedures or techniques more deserving of protection.” U .S. News & World Report, 1986 U.S. Dist. LEXIS 27634, at *6-7.
B. DHS Has Properly Withheld SOP 303 Under Exemption 7(F) DHS has withheld portions of SOP 303 under Exemption 7(F) because releasing them, and thereby disclosing portions of the process for shutting down wireless networks to prevent bombings, could endanger individuals’ physical safety. Exemption 7(F) shields from disclosure records or information compiled for a law enforcement purpose, if its production “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “While courts generally have applied Exemption 7(F) to protect law enforcement personnel or other specified third parties, by its terms, the exemption is not so limited; it may be invoked to protect ‘any individual’ reasonably at risk of harm.” Amuso v. U.S. Dept. of Justice, 600 F. Supp. 2d 78, 101 (D.D.C. 2009) (quotation marks omitted). Indeed, in Living Rivers, the court upheld the Bureau of Reclamation’s invocation of Exemption 7(F) over inundation maps, which described the effects
12

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of dam failures for the areas downstream from the Hoover and Glen Canyon Dams, because those maps could be used to aid terrorist attacks on the dams that would jeopardize the downstream population. 272 F. Supp. 2d at 1321-22. Importantly, “[w]ithin limits, the Court[s] defer[ ] to [an] agency’s assessment of danger.” Amuso, 600 F. Supp. at 101.
DHS properly withheld SOP 303 because its disclosure could reasonably be expected to endanger the physical safety of individuals near unexploded bombs. DHS has already established that it compiled SOP 303 for law enforcement purposes. See § II.A above. Thus, it need only demonstrate that releasing SOP 303 could reasonably be expected to endanger the physical safety of any individual. 5 U.S.C. § 552(b)(7). SOP 303 describes a procedure for shutting down wireless networks to prevent bombings that would endanger lives. Holzer Decl. ¶ 25. Releasing information regarding this protocol would enable “bad actors” to blunt its usefulness, perhaps even by insinuating themselves into the process. Id. ¶ 26. Neutering this protocol could reasonably be expected to endanger the physical safety of those near a bomb by increasing the chances that the process will fail and the bomb will explode. “Given that disclosure of the requested information could reasonably lead to circumvention of or interference with a procedure aimed at preventing the triggering of improvised explosive devices, there is a reasonable expectation that disclosure could reasonably endanger the lives or physical safety of the general public.” Id. This assessment of danger by DHS, a law enforcement agency, is eminently reasonable and deserving of deference. See Amuso, 600 F. Supp. at 101.
C. DHS Properly Withheld Information in SOP 303 Under Exemption 7(C) and Exemption 6
DHS has withheld from the disclosure the names, direct-dial telephone numbers, and email addresses of state homeland security officials to protect their personal privacy. Holzer Decl. ¶¶ 23-24. These withholdings are justified under Exemptions 6 and 7(C).
13

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Exemption 7(C) protects records or information compiled for a law enforcement purpose to the extent that the production of records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The D.C. Circuit has interpreted the term “files” in the context of Exemption 6 to encompass “not just files, but also bits of personal information, such as names and addresses, the release of which would create a palpable threat to privacy.” Judicial Watch v. FDA, 449 F.3d 141, 152-53 (D.C. Cir. 2006). Both exemptions require the agency and the court to “balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The only relevant public interest is the interest in knowing what the government is up to. Sussman v. U.S. Marshals Svc., 494 F.3d 1106, 1115 (D.C. Cir. 2007); Nat’l Ass’n of Home Bldgs. v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002).
Though both exemptions require balancing, “the balance tilts more strongly toward nondisclosure in the context of Exemption 7(C) because Exemption 7(C)’s privacy language is broader than the comparable language in Exemption 6 in two respects.” Braga v. FBI, 2012 WL 6644356, at *5 (D.D.C. Dec. 21, 2012) (quotation marks omitted). First, Exemption 6 protects files that, if released, would result in a “clearly unwarranted invasion of personal privacy”; Exemption 7 omits the word “clearly.” Id. Second, Exemption 7 covers documents that, if released, “could reasonably be expected to constitute” an invasion of privacy, while Exemption 6 covers documents that “would constitute” an invasion of privacy. Id.
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The differences in these standards are irrelevant here, however, as DHS’s withholding satisfies both exemptions.3 Releasing the names, direct-dial telephone numbers, and email addresses of state homeland security officials would invade their personal privacy by subjecting them to possible harassment, as well as targeting by bad actors. Holzer Decl. ¶¶ 23, 24; see Lazaridis v. U.S. Dep’t of State, 2013 WL 1226607, at *12 (D.D.C. March 27, 2013) (Exemption 7); Judicial Watch, 449 F.3d at 152-53 (Exemption 6); Nat’l Right to Work Legal Defense & Education Fund v. U.S. Dep’t of Labor, 828 F. Supp. 2d 183, 192-93 (D.D.C. 2011) (Exemption 6). And there is no public interest in the release of this information, as it does not provide information about what the government is up to. See Holzer Decl. ¶¶ 23, 24; Lazaridis, 2013 WL 1226607, at *12 (Exemption 7(C)) ; Nat’l Right to Work, 828 F. Supp. 2d at 192-93 (Exemption 6). Thus, these withholdings are proper. See Sussman, 494 F.3d at 1115 (Exemption 7(c)); Lazaridis, 2013 WL 1226607, at *12 (Exemption 7(C)) ; Nat’l Right to Work, 828 F. Supp. 2d at 192-93 (Exemption 6).
III. The Agency Performed an Appropriate Segregability Analysis The agency carefully reviewed SOP 303 and determined that portions of SOP 303
could be separated from the exempt sections of the documents and released. Those non-exempt portions are being provided to EPIC. No other segments of the document could be released without compromising the interests protected by the exemptions invoked by DHS. Holzer Decl. ¶ 22.
3 As discussed before, DHS has demonstrated that it compiled SOP 303 for law enforcement purposes).
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CONCLUSION The Court should dismiss EPIC’s adequacy-of-the-search claim as moot and enter judgment in favor of DHS with regard to EPIC’s challenge to the agency’s withholding. In the alternative, the Court should enter judgment in favor of DHS with respect to all claims.

Dated: June 28, 2013

Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General
RONALD C. MACHEN JR United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch, Civil Division
/s/ Justin M. Sandberg JUSTIN M. SANDBERG (Ill. Bar No. 6278377) Trial Attorney U.S. Dept. of Justice, Civil Division, Federal Programs Branch 20 Mass. Ave., NW, Rm. 7302 Washington, DC 20001 (202) 514-5838 phone (202) 616-8202 fax justin.sandberg@usdoj.gov
Attorneys for Defendant

16

Case 1:13-cv-00260-JEB Document 10 Filed 06/28/13 Page 19 of 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ELECTRONIC PRIVACY

)

INFORMATION CENTER,

)

)

Plaintiff,

)

)

v.

)

Case No. 1:13-CV-260 (JEB)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant.

)

____________________________________)

DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Civil Rule 7(h), Defendants submit this statement of material

facts as to which no genuine issue exists.

1. Plaintiff Electronic Privacy Information Center (EPIC) submitted a Freedom of

Information Act (FOIA) request to the Department of Homeland Security (DHS)

seeking three categories of records:

1) The full text of Standard Operating Procedure 303; 2) The full text of the pre-determined ‘series of questions’ that
determines if a shutdown is necessary; [and] 3) Any executing protocols or guidelines related to the
implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.

EPIC FOIA Request, July 10, 2012 (attached as Ex. 1).

2. Standard Operating Procedure (SOP) 303 is a document that details a process for

the “deactivation of wireless networks” primarily to “deter the triggering of radio-

1

Case 1:13-cv-00260-JEB Document 10 Filed 06/28/13 Page 20 of 23
activated improvised explosive devices.” Declaration of James V.M.L. Holzer, Senior Director of FOIA Operations for the DHS Privacy Office, June 28, 2013, ¶ 25 (attached as Ex. 2). 3. Upon receiving the FOIA request, DHS’s Privacy Office contacted the components of the agency most likely to have responsive records: (1) the DHS Management Directorate, (2) the Office of the Chief Information Officer (OCIO), (3) the Under Secretary for Management, and (4) the National Protection and Programs Directorate (NPPD). Id. ¶¶ 10, 12. 4. The Privacy Office asked these components to search their files for responsive records. Id. ¶¶ 10, 12. 5. The Management Directorate and the Under Secretary’s offices were asked to search their records because each office has a “broad portfolio” of responsibilities and, consequently, “often will know about a policy, procedure or initiative.” Id. ¶¶ 12, 13. 6. The OCIO was asked to search its records because the request related to communications and that office “is often involved in, and consulted on, information and communication issues.” Id. ¶ 13. 7. Each of three offices searched “shared computer drives, Share Point sites, and emails for information about the requested records” because “[t]hese are storage places where DHS employees would typically place information about the products they are working on as well as copies of any final products . . . .” Id. ¶ 15.
2

Case 1:13-cv-00260-JEB Document 10 Filed 06/28/13 Page 21 of 23
8. They searched using the search terms “Standard Operating Procedure 303” and “SOP 303.” Id.
9. The NPPD initially declined to search, stating that it had no records responsive to the request. Id. ¶ 11.
10. DHS sent EPIC a letter stating that it did not locate any responsive records subject to the FOIA. Letter from Mia Day, DHS FOIA Program Specialist, to Amie L. Stepanovich, Assoc. Litigation Counsel, EPIC, Aug. 21, 2012 (attached as Ex. 3).
11. EPIC appealed this determination, arguing that DHS failed to perform an adequate search. EPIC Admin. Appeal, at 2-3, Sept. 13, 2012 (attached as Ex. 4).
12. On appeal, the Office of the Chief Administrative Law Judge for the U.S. Coast Guard, which handles certain FOIA appeals for DHS, concluded that DHS had not sufficiently demonstrated the adequacy of its search. Decision Letter from Joanna Sherry, Attorney Advisor, Office of the Chief ALJ, to Stepanovich, March 25, 2013, at 1 (attached as Ex. 5).
13. The matter was remanded to the agency for further review. Id. 14. After this administrative remand, the NPPD conducted a search of its files.
Holzer Decl. ¶ 19 15. The NPPD located a copy of SOP 303. Id. 16. The agency ended its search after concluding that SOP 303 contains all three
categories of information sought by EPIC and that no other responsive documents exist. Id. ¶¶ 19, 21.
3

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17. The agency determined that the release of names, direct-dial telephone numbers, and email addresses of state homeland security officials contained in SOP 303 would constitute a clearly unwarranted invasion of personal privacy. Id. ¶ 23.
18. Accordingly, DHS invokes Exemption 6 to justify this withholding. Holzer Id. ¶¶ 22, 23.
19. The agency determined that SOP 303 is a record compiled for law enforcement purposes and that the release of release of the names, telephone numbers, and email addresses of state homeland security officials contained in SOP 303 could reasonably be expected to constitute an unwarranted invasion of personal privacy. Id. ¶¶ 20, 24.
20. Accordingly, DHS invokes Exemption 7(C) to justify this withholding. Id. ¶¶ 22, 24.
21. The agency determined that SOP 303 is a record compiled for law enforcement purposes and that the release of portions of SOP 303 would disclose the techniques and procedures for law enforcement investigations. Id. ¶¶ 20, 25.
22. Accordingly, DHS invokes Exemption 7(E) to justify this withholding. Holzer Id. ¶¶ 22, 25.
23. The agency determined that SOP 303 is a record compiled for law enforcement purposes and the release of portions of SOP 303 could reasonably be expected to endanger the life or physical safety of an individual. Id. ¶¶ 20, 26.
24. Accordingly, DHS invokes Exemption 7(F) to justify this withholding. Holzer Id. ¶¶ 22, 26.
4

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25. The agency determined that portions of SOP 303 are non-exempt, and it is releasing those portions to EPIC. Id. ¶ 22.

Dated: June 28, 2013

Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General
RONALD C. MACHEN JR United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch, Civil Division
/s/ Justin M. Sandberg JUSTIN M. SANDBERG (Ill. Bar No. 6278377) Trial Attorney U.S. Dept. of Justice, Civil Division, Federal Programs Branch 20 Mass. Ave., NW, Rm. 7302 Washington, DC 20001 (202) 514-5838 phone (202) 616-8202 fax justin.sandberg@usdoj.gov
Attorneys for Defendant

5

Case 1:13-cv-00260-JEB Document 10-1 Filed 06/28/13 Page 1 of 6
EXHIBIT 1

Case 1:13-cv-00260-JEB Document 10-1 Filed 06/28/13 Page 2 of 6 ELECTRONIC PRIVACY INFORMATION CENTER

ept•c.org RECEIVED

July 10, 2012
VIA CERTIFIED MAIL Mary Ellen Callahan Chief Privacy Officer/Chief FOIA Officer The Privacy Office U.S. Department of Homeland Security 245 Murray Drive SW, Building 410 STOP-0655 Washington, D.C. 20528-0655

PRIVACY OFFICE

1718 Connecticut Ave NW Suite 200 Washington DC 20009 USA + 1 202 483 1140 [tel] + 1 202 483 1248 [lax] www.epic.org

Re: Freedom of Information Act Request

To Whom it May Concern:
This letter constitutes a request under the Freedom of Information Act. 1 This request is submitted on behalf of the Electronic Privacy Information Center ("EPIC") to the Department of Homeland Security ("DHS").

Background

On March 9, 2006, the National Communications System ("NCS") approved

Standard Operating Procedure ("SOP") 303, however it was never released to the public?

This secret document codifies a "shutdown and restoration process for use by commercial

and

wireless networks during national crisis."3 In a 2006-2007 Report, the

President's National Security Telecommunications Advisory Committee ("NSTAC")

indicated that SOP 303 would be implemented under the coordination of the National

Coordinating Center ("NCC") ofthe NSTAC, while the decision to shut down service would be made by state Homeland Security Advisors or individuals at DHS.4 The report

indicates that NCC will determine if a shutdown is necessary based on a "series of questions". 5

On July 3, 2011, a Bay Area Rapid Transit ("BART") officer in San Francisco shot and killed a homeless man, Charles Hill.6 The officer alleged later that Hill had

1 5 u.s.c. § 552 (2011).
2 National Security Telecommunications Advisory Committee, NSTAC Issue Review 2006-2007 (2007),
available at http://www.ncs.gov/nstac/reports/2007/2006-2007%20NSTAC%20Issue%20Rev iew.pdf, at
139. 3 Jd. at 139. 4 Jd. at 139-40. 5 Jd. at 139. 6 BART Protests: San Francisco Transit Cuts Ceff,ryhones to Thwart Demonstrators; First Amendment
Debate, Ned Potter, ABC News, Aug. 16,2011 http://abcnews.go.com/Technology/bart-protest-san-
francisco-transit-cut-cellphones-prevent/story?id= 14311444#.T9jZivF2m5Y.

Case 1:13-cv-00260-JEB Document 10-1 Filed 06/28/13 Page 3 of 6
attacked him with a knife and that he had acted in self-defense.7 The death sparked a major protest against BART on July 11, 2011.8 Though the protests disrupted service at several transit stations, no one was injured.9 A second protest was planned one month later, but was cut short after BART officials cut off all cellular service inside four transit stations for a period of three hours. 10 This act prevented any individual on the station platform from sending or receiving phone calls, messages, or other data. 11
The incident with BART has set off a renewed interest in the government's power to shut down access to the Internet and other communications services. 12 A 2011 Report from the White House asserted that the National Security Council and the Office of Science and Technology Policy have the legal authority to control private communications systems in the United States during times of war or other national emergencies. The Federal Communications Commission plans to implement policies governing the shutdown of communications traffic for the "purpose of ensuring public safety". Also, on July 6, 2012, the White House approved an Executive Order seeking to ensure the continuity of government communications during a national crisis. 13 As part of the Executive Order, DHS was granted the authority to seize private facilities, when necessary, effectively shutting down or limiting civilian communications. 14
It is impossible to have an informed debate on the need for additional shutdown procedures without public information on the provisions of SOP 303. The complete shutdown of wireless communications for any period of time may be used to prevent the detonation of a bomb through a remote device. 15 However, it can also be leveraged to quell political dissent, prevent protests, and stop the free flow of information and communications. For example, in 2011, the Egyptian government shut down all access to Internet and cellular services for the sole purpose of quieting large-scale anti-government
7 /d. 8 BARTprotest causes major delays in service, Kelly Zito, SFGate, July II, 20II http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/20II /07/Il!BA9G IK9905 .DTL. 9 !d. 10 Potter, supra note 6. 11 !d. 12 On April 30, 20I2, the Federal Communications Commission ("FCC") requested public comment on proposed procedures to guide "intentional interruption of wireless service by government actors for the purpose of ensuring public safety." (http://transition.fcc.gov/Daily_Releases/Daily_Business/20I2/db030I/DA-I2-3IIA I.pdf). Among other things, the FCC sought feedback on when, if ever, it is appropriate to disrupt wireless services. The comment period closed on May 30, 20I2. A final document has not yet been released. However, any final procedures would only apply in circumstances involving public safety, and SOP 303 would remain the governing document for times of national emergency. 13 White House, Executive Order: Assignment ofNational Security and Emergency Preparedness Communications Functions (July 6, 20I2), available at http://www.whitehouse.gov/the-pressoffice/20 I2/07106/executive-order-assignment-national-security-and-emergency-preparedness-. 14 !d. at Sec. 5.2(e). 15 Government asks: when can we shut down wireless service?, Matthew Lasar, Ars Technica, May 7, 20I2 http:/Iarstechn ica.com/tech-poI icy/20 12/051government-asks-when-can-we-shut-down-wireJess-service/.

Case 1:13-cv-00260-JEB Document 10-1 Filed 06/28/13 Page 4 of 6
protests. 16 Early reports indicated, "The shutdown caused a 90 percent drop in data traffic to and from Egypt, crippling an important communications tool." 17
Documents Requested
In accordance with the facts presented above, EPIC requests the following three (3) categories of records from DHS:
1. The full text of Standard Operating Procedure 303;
2. The full text ofthe pre-determined "series of questions" that determines if a shutdown is necessary;
3. Any executing protocols or guidelines related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.
Request for Expedited Processing
This request warrants expedited processing because it is made by "a person primarily engaged in disseminating information... " and it pertains to a matter about which there is an "urgency to inform the public about an actual or alleged federal government activity."18
EPIC is "primarily engaged in disseminating information." 19
There is a particular urgency for the public to obtain information about DHS' authority to approve the shutdown of wireless networks in the United States. As previously discussed, President Obama signed a new Executive Order on July 6, 2012, which will grant DHS expanded authority to seize control of private communications facilities during times of national crisis.20 This Executive Order has been the focus of a large number of recent news stories.21 In addition, numerous cybersecurity bills are currently under consideration, any of which may further extend DHS' cyber authority?2
16 Egypt Cuts Off Most Internet and Cell Service, Matt Richtel, New York Times, Jan. 28, 2011, http://www .nytimes.com/20 11/0 1/29/technology/intemet/29cutoff.html. 17 !d. 18 5 U.S.C. § 552(a)(6)(E)(v)(II) (2012); Al-Fayedv. CIA, 254 F.3d 300, 306 (D.C. Cir. 2001). 19 American Civil Liberties Union v. Department ofJustice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004). 20 White House, supra note 13. 21 See, e.g., White House order on emergency communication riles privacy group, Jaikumar Vijayan, Coumputerworld, July 10,2012 http://www .computerworld.com/s/article/9228950/White_House_order_on_emergency_communications_ri les_privacy_group; White House creates new critical comms management committee, Mark Rockwell, Gov't Sec. News, July 9, 2012 http://www.gsnmagazine.com/node/26716?c=communications; CNN Newsroom: Govt. re-prioritizing U.S. communications (CNN television broadcast July 9, 2012, 2:40PM), available at http://newsroom. blogs.cnn.com/20 12/07/09/govt-re-prioritizing-u-s-communications/. 22 See, e.g., Cybersecurity Act of2012, S. 2015, 112th Cong. (2012); SECURE IT Act of2012, H.R. 4263, I 12th Cong. (20 12).

Case 1:13-cv-00260-JEB Document 10-1 Filed 06/28/13 Page 5 of 6
In order for the public to comment meaningfully on these actions, or subsequent measures, the public must be aware of DHS' current policies and procedures. Neither DHS nor the White House have provided substantive information on the development or implementation of SOP 303. The public must be informed about the government's powers to shut down wireless communications within the United States.
Request for "News Media" Fee Status and Fee Waiver
EPIC is a "representative of the news media" for FOIA purposes.23 Based on our status as a "news media" requester, we are entitled to receive the requested records with only duplication fees assessed. 24 Further, consistent with the Department of Homeland Security regulations, any duplication fees should be waived because disclosure ofthe records requested herein "is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government," and "disclosure ofthe information 'is not primarily in the commercial interest of [EPIC]'". 25
This FOIA request involves information on DHS cybersecurity procedures. Responsive documents will hold a great informative value regarding activities of the Department that will have a significant public impact.
EPIC routinely and systematically disseminates information to the public. EPIC maintains several heavily visited websites that highlight breaking news concerning privacy and civil liberties. Two of EPIC's websites, EPIC.org and PRIVACY.org, consistently appear at the top of search engine rankings for searches on "privacy." EPIC also publishes a bi-weekly electronic newsletter, the EPIC Alert, which is distributed to around 20,000 readers, many who report on technology and privacy issues for major news outlets.26
In addition, EPIC's FOIA documents have routinely been the subject of national news coverage. On a related matter, EPIC submitted a FOIA request to DHS for documents concerning the Department's surveillance of social networks and news organizations. 27 The documents detailed the Department's implementation of a program to gather information from public social communities on the Internet.28 EPIC was able to disseminate those documents to the public at large, which resulted in numerous news stories. 29
23 EPIC v. Department ofDefense, 241 F.Supp.2d 5 (D.D.C. 2003). 24 6 C.F.R. § 5.11(c)(l)(i) (2011). 25 /d. at (k)(l). 26 See EPIC: EPIC Alert, http://epic.org/alert/ (last visited Mar. 14, 2012). 27 Letter from EPIC to Dept. of Homeland Sec. (Apr. 12, 2011) (on file at http:/lepic.org/privacy/socialnet/EPIC-FOIA-DHS-Social-Media-Monitoring-04-12-ll.pdf). 28 See EPIC: EPIC v. Department of Homeland Security: Media Monitoring, http://epic.org/foia!epic-v-dhsmedia-monitoring/ (last visited July 9, 20 12). 29 See, e.g., DHS list ofwords you should never ever blog or tweet. Ever., Kevin Fogarty, IT World, May 31, 2012 http://www.itworld.com/security/279429/dhs-list-words-you-should-never-ever-blog-or-tweet-

Case 1:13-cv-00260-JEB Document 10-1 Filed 06/28/13 Page 6 of 6
EPIC is a non-profit, public interest research center that was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values. 30 EPIC's work is distributed freely through our website and through the bi-weekly EPIC Alert newsletter. EPIC has no clients, no customers, and no shareholders. Therefore, EPIC has no commercial interest that would be furthered by disclosing the requested records.
Thank you for your consideration of this request. As provided in 6 C.F.R. § 5.5(d)(4), I will anticipate your determination on this request for expedited processing within ten (10) business days. For questions regarding this request, I can be contacted at (202)-483-1140 ext. 104 or FOIA@epic.org.
Respectfully Submitted,
Associate Litigation Counsel Electronic Privacy Information Center John J. Sadlik IPIOP Clerk Electronic Privacy Information Center
ever; DHS monitoring ofsocial media concerns civil liberties advocates, Ellen Nakashima, The Washington Post, Jan. 13, 2012 http://www.washingtonpost.com/wor1d/nationa1-security/dhs-monitoringof-socia1-media-worries-civil-liberties-advocates/2012/01/13/giQANP07wP_story .htmI; Federal Contractor Monitored Social Network Sites, Charlie Savage, New York Times, Jan. 13, 2012 http://www .nytimes.com/20 12/0 1/14/us/federal-security-program-monitored-public-opinion.htmI. 30 EPIC: About EPIC, http://epic.org/epic/about.html (last visited Mar. 20, 2012).

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 1 of 11
EXHIBIT 2

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 2 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION

)

CENTER,

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY

)

)

Defendant.

)

__________________________________________)

Civil Action No. 13-260 (GK)

DECLARATION OF JAMES V.M.L. HOLZER, I, IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I, James V.M.L. Holzer declare and state as follows: 1. I am the Senior Director of FOIA Operations for the Department of Homeland Security Privacy Office (DHS Privacy). I am the Department official immediately responsible for responding to requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. §552 (the FOIA), the Privacy Act, 5 U.S.C. § 552a (the Privacy Act), and other applicable records access Statutes and Regulations. I have held this position since November 7, 2012. Prior to that, I held the position of Director of Disclosure and FOIA Operations. I have been with the Department since 2009. I make the following statements based upon my personal knowledge, which in turn is based on a personal review of the records in the files established for processing FOIA requests and upon information furnished to me in the course of my official duties. Through the exercise of my official duties, I have also become familiar with the background of this case and have read a copy of the complaint.

1

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2. The purpose of this declaration is to provide an overview of the FOIA process at DHS, and to explain how the FOIA request that is the subject of the instant litigation was processed. This declaration is submitted in support of defendant’s motion for summary judgment.
3. The Department of Homeland Security's (DHS) FOIA operations is carried out by the DHS Privacy Office. FOIA requests directed to DHS are reviewed by DHS Privacy, and that office also refers those requests to the DHS offices and components likely to possess responsive documents. DHS Privacy also oversees FOIA and Privacy Act operations throughout DHS.
4. After DHS Privacy receives a FOIA request, that request receives a unique identification number. DHS Privacy uses the unique identification number to track the status of all FOIA requests that it receives. DHS Privacy then reviews the request to determine which DHS office or component is likely to possess responsive documents. This review may include conversations with DHS component FOIA offices to determine if they had received the same request directly from the public and if the component has responsive documents.
5. In addition to DHS Privacy, DHS components maintain offices that handle FOIA requests. These offices also use an automated case tracking systems which assigns case control numbers to all FOIA requests received by that component. Components log all incoming FOIA requests into an automated case tracking system, and input information about each request into the system (including, but not limited to, the requester’s name and/or organization and, in the case of FOIA requests, the request’s topic). These numbers are used to track the status of incoming FOIA requests.
6. The mission of DHS’s National Protection and Programs Directorate (NPPD) is to assure a safe, secure, and resilient infrastructure. There are four subcomponents within NPPD, which are the Federal Protective Service (FPS), Office of Cybersecurity and Communications
2

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(CS&C), Office of Infrastructure Protection (IP), and Office of Biometric Identity Management (OBIM). FPS provides security and law enforcement services to federally owned and leased buildings, facilities, properties. CS&C’s mission is to assure the security, resiliency, and reliability of the nation’s cyber and communications infrastructure. IP leads a coordinated national effort to reduce risk to our critical infrastructure. OBIM uses innovative technological solutions to provide decision-makers with accurate biometric-based information.
7. NPPD also has a FOIA Office, which processes FOIA requests received directly from the general public by postal delivery or email, and those referred to it by DHS Privacy, DHS component FOIA offices and federal agencies. The NPPD FOIA office processes FOIA requests for all NPPD subcomponents and offices.
8. When the NPPD FOIA office personnel receive a referral or tasking from DHS Privacy or some other source, NPPD FOIA personnel make a determination regarding which NPPD subcomponent or program office may have responsive documents, and then refer the request to the appropriate subcomponent or office.
EPIC’S JULY 10, 2012 FOIA REQUEST 9. On July 18, 2012, DHS Privacy received a FOIA request from EPIC dated July 10, 2012. EPIC requested the following categories of records: (1) the full text of Standard Operating Procedure 303 (SOP 303), which describes a shutdown and restoration process for use by “commercial and private wireless networks” in the event of a crisis; (2) the full text of the predetermined "series of questions" that determines if a shutdown is necessary; and (3) any executing protocols or guidelines related to the implementation of SOP 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.
3

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10. When DHS Privacy received EPIC’s FOIA request it had to determine which offices at DHS would be most likely to have records responsive to the request. EPIC specifically mentioned the National Communications System (NCS) and the National Coordinating Center for Communications (NCC) in its request, each of which was or is an NPPD organization. The NCS was formerly an organization within NPPD that was established to provide the Federal Government with national security and emergency preparedness communications as well as formulate and implement policies in this area. By Executive Order 13618 on July 6, 2012, the NCS was eliminated, and replaced with an alternate structure for performing the same functions. Also, DHS was directed to establish an organization performing the functions of the NCC. The NCC is a joint government/industry operation, which is housed within the CS&C subcomponent of the NPPD, and which coordinates the initiation, restoration and reconstitution of national security and emergency preparedness communications services nationally. Based on the request’s reference to NCS and NCC, DHS Privacy contacted the NPPD FOIA Office to determine if that office was familiar with the subject matter of the request.
11. The NPPD FOIA office believed that there were no responsive records. As discussed more fully below, the NPPD FOIA Office was incorrect, in that NPPD indeed had responsive documents, namely SOP 303. The NPPD FOIA office learned of its mistake later. The mistake was due in part to confusion regarding a similar FOIA request from another requester seeking certain records relating to the activation of SOP 303, but not the SOP itself, as EPIC had requested. Because the two FOIA requests were pending within the same timeframe and dealt with the same general subject matter area, NPPD did not fully appreciate the difference between EPIC’s request, which sought only three specific categories of documents (i.e., the full text of SOP 303, the full text of the series of questions used to determine the necessity of shutdown, and
4

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 6 of 11
any executing protocols or guidelines), and the other FOIA request, which sought records related to particular security events where the SOP may have been implemented and activated.
12. In addition to referring EPIC’s request to NPPD, DHS Privacy also directed the DHS Management Directorate (MGMT), the Office of the Chief Information Officer (OCIO) and the Under Secretary for Management (USM) to search for responsive documents. DHS Privacy believed that these offices would be likely to have documents related to communications policy, such as SOP 303. The DHS Management Directorate is the office responsible for Department budgets and appropriations, expenditure of funds, accounting and finance, procurement, human resources, information technology systems, facilities and equipment, and the identification and tracking of performance measurements. Because of its broad portfolio, MGMT often will know about a policy, procedure or initiative, and DHS Privacy often directs MGMT to search for responsive documents.
13. DHS Privacy directed that OCIO conduct a search because the request related to communications. OCIO is often involved in, and consulted on, information and communication issues, which might have had some information about the subject matter of the request. USM also was tasked to conduct a search because, like MGMT, it has a broad portfolio. The office oversees (i) the promulgation of policy, (ii) operations and (iii) oversight, for each of the critical management lines-of-business. These lines of business include: acquisition, human capital, budget and finance, information technology, capital assets, and security.
14. DHS Privacy sent an acknowledgement to EPIC on July 24, 2012, assigning the matter file number DHS/OS/PRIV 12-0598 and indicated that DHS Privacy had tasked MGMT, OCIO, and USM with a search based on the opinion that those offices would be most likely to have records responsive to the request.
5

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 7 of 11
15. Each office conducted a search for documents related to the SOP, using the search terms “Standard Operating Procedure 303” and “SOP 303.” These offices do not have one database to search for records that are responsive to Freedom of Information and/or Privacy Act requests. Consequently, each of the component offices was tasked to search for records. In this instance, for purposes of coordination, search requests were sent to the Chief of Staffs in each of the three Offices mentioned above. In each case, the offices searched shared computer drives, Share Point sites, and emails for information about the requested records. These are the storage places where DHS employees would typically place information about the products they are working on as well as copies of any final products that are proposed for dissemination or are actually disseminated. In each case, the Offices reported no records responsive to the request.
16. DHS Privacy sent its final response to EPIC on August 21, 2012. In the final response, DHS Privacy said that MGMT, OCIO, and USM, had conducted comprehensive searches for records that would be responsive to the request. DHS Privacy also said that these offices were unable to locate or identify any responsive records.
17. On October 2, 2012, DHS Privacy received an appeal from EPIC dated September 13, 2012. DHS Privacy acknowledged the appeal on October 25, 2012. DHS Privacy forwarded the appeal to the United States Coast Guard, Office of the Chief Administrative Law Judge (ALJ), as that office reviews FOIA appeals on behalf of DHS’ Office of the General Counsel.
18. By the letter dated March 25, 2013, the ALJ notified DHS Privacy that it had reviewed the appeal, and it remanded the matter back to DHS Privacy for further review.
19. On April 19, 2013, DHS Privacy reached out to various offices, including MGMT, OCIO, and USM at DHS Headquarters to again inquire as to whether these offices might have responsive documents. DHS Privacy also contacted NPPD again, at which point, the NPPD
6

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 8 of 11
FOIA Office realized that there was confusion about the nature of EPIC’s request. The NPPD FOIA Office realized that NPPD would have one or possibly more records responsive to the EPIC request. NPPD conducted a search and quickly identified, in the files of the NCC, the only document that is responsive to the request. Specifically, NPPD consulted with the NCC because the NCC is the author of the SOP and implements the SOP. According to the NCC, there are no other documents that contain either the full text of the questions or any executing protocols or guidelines.
20. SOP 303 was drafted by the NCC and approved by CS&C on March 17, 2006. It has been periodically updated so that names and contact information contained therein remains current. The SOP was compiled for a law enforcement purpose, which includes activities related to national security and homeland security. It was inspired by the Letter to the President on Emergency Wireless Protocol and Recommendations, dated March 1, 2006, and generated by the National Security Telecommunications Advisory Committee (NSTAC), an industry-led Presidential advisory committee established by Executive Order 12382. In the aftermath of the 2005 bombings in the London transportation system, the NSTAC perceived the need for a single governmental process to coordinate determinations of if and when cellular shutdown activities should be undertaken in light of the serious impact on access by the public to emergency communications services during these situations and the need to preserve the public trust in the integrity of the communications infrastructure. Consistent with the NSTAC’s recommendation, the NCC developed SOP 303 as a unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies such as the threat of radio-activated improvised explosive devices. The SOP establishes a procedure by which state homeland
7

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 9 of 11
security officials can directly engage with wireless carriers, and it establishes factual authentication procedures for decision-makers.
21. Included as part of SOP 303 itself are the two other categories of records that EPIC seeks, i.e., the full text of the pre-determined series of questions that determines if a shutdown is necessary, and the executing protocols related to the implementation of SOP 303. Again, DHS Privacy, in conjunction with the NCC, determined that the SOP is the only responsive document because there are no other documents that contain the full text of the questions or any executing protocols.
22. Portions of the SOP are being withheld pursuant to FOIA Exemptions b(6), b(7)(c), b(7)(e), and b(7)(f), as the SOP contains security procedures and related information regarding the shutdown of cell phone service during various types of homeland security incidents, and personal information about certain law enforcement officials. After a review for segregability, NPPD FOIA Office determined that some information in the SOP could be released without compromising law enforcement or privacy objectives. DHS Privacy agrees with the assessment.
23. FOIA Exemption b(6) protects from disclosure information about individuals when the disclosure of the information "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552 (b)(6). DHS applied the b(6) exemption to protect the names, directdial telephone numbers, and email addresses for state homeland security officials who have an expectation of privacy. The redacted information does not directly shed light on the operations or activities of the government. The release of this information would constitute an unwarranted invasion of personal privacy, possibly subject the persons to harassment by the public and inquiries by the media, and potentially facilitate targeting of these officials by bad actors.
24. FOIA Exemption b(7)(c) permits the withholding of personal information in law
8

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 10 of 11
enforcement records. DHS applied the b(7)(c) exemption to protect the names, direct-dial telephone numbers and e-mail addresses of high-ranking officials within each state’s homeland security agency. The release of this information would not shed lights on the agency’s operations or activities and would constitute an unwarranted invasion of personal privacy, possibly subject the persons to harassment by the public and inquiries by the media, and potentially facilitate targeting of these officials by bad actors.
25. FOIA Exemption b(7)(e) permits the withholding of law enforcement information that "would disclose techniques and procedures for law enforcement investigations.” The b(7)(e) exemption applies because the requested document contains a homeland security procedure primarily intended to efficiently and effectively deter the triggering of radio-activated improvised explosive devices. During the course of incidents involving the potential for improvised explosive devices to be dispersed over a wide geographic area, orderly deactivation of wireless networks may be the best option for preventing and/or mitigating explosions that would endanger life and property. SOP 303 establishes a protocol for verifying that circumstances exist that would justify shutting down wireless networks. It also ensures that decision makers consider potential public safety hazards when deciding whether to shut-down a wireless network, such as the inability of first-responders and the public to use wireless phones for calls, including 911 calls. In addition, SOP 303 provides a step-by-step process for the orderly shut-down of wireless networks following verification of the facts and appropriate weighing of the circumstances. Finally, SOP 303 coordinates orderly resumption of wireless service. Making SOP 303 public would enable bad actors to circumvent or interfere with a law enforcement strategy designed to prevent activation of improvised explosive devices by providing information about when shutdown procedures are used and how a shutdown is
9

Case 1:13-cv-00260-JEB Document 10-2 Filed 06/28/13 Page 11 of 11
executed. 26. FOIA Exemption b(7)(F) permits the withholding of records necessary to protect the
physical safety of “any individual.” Making SOP 303 public would, e.g., enable bad actors to insert themselves into the process of shutting down or reactivating wireless networks by appropriating verification methods and then impersonating officials designated for involvement in the verification process. The aim of such bad actors would be to disable the protocol so that they could freely use wireless networks to activate the improvised explosive devices. Given that disclosure of the requested information could reasonably lead to circumvention of or interference with a procedure aimed at preventing the triggering of improvised explosive devices, there is a reasonable expectation that disclosure could reasonably endanger individuals’ lives or physical safety.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 28th day of June, 2013.
____________________________ James V.M.L. Holzer
10

Case 1:13-cv-00260-JEB Document 10-3 Filed 06/28/13 Page 1 of 3
EXHIBIT 3

Case 1:13-cv-00260-JEB Document 10-3 Filed 06/28/13 Page 2 of 3
U.S. Department of Homeland Security Washington, DC 20528-0655
Homeland Security
Privacy Office, Mail Stop 0655
August 21, 2012
Amie L. Stepanovich Associate Litigation Counsel Electronic Privacy Information Center 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009
Re: DHS/OS/PRIV 12-0598
Dear Ms. Stepanovich:
This is the final response to your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), dated July 10, 2012, and received by this office on July 18, 2012.
You are seeking the following records:
1. The full text of Standard Operating Procedure 303;
2. The full text of the pre-determined “series of questions” that determine if a shutdown is necessary;
3. Any executing protocols or guidelines related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.
We conducted a comprehensive search of files within the DHS, Management Directorate (MGMT), Office of the Chief Information Officer (CIO) and the Under Secretary for Management (USM), for records that would be responsive to your request. Unfortunately, we were unable to locate or identify any responsive records.
While an adequate search was conducted, you have the right to appeal this determination that no records exist within MGMT-CIO and MGMT-USM that would be responsive to your request. Should you wish to do so, you must send your appeal and a copy of this letter, within 60 days of the date of this letter, to: Associate General Counsel (General Law), U.S. Department of Homeland Security, Washington, D.C. 20528, following the procedures outlined in the DHS FOIA regulations at 6 C.F.R. § 5.9. Your envelope and letter should be marked “FOIA Appeal.” Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia.

Case 1:13-cv-00260-JEB Document 10-3 Filed 06/28/13 Page 3 of 3
The Office of Government Information Services (OGIS) also mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. If you wish to contact OGIS, you may email them at ogis@nara.gov or call 1-877-684-6448. Provisions of the FOIA allow us to recover part of the cost of complying with your request. In this instance, because the cost is below the $14 minimum, there is no charge. If you need to contact our office concerning this request, please call 866-431-0486 and refer to DHS/OS/PRIV 12-0598.
Sincerely, Mia Day FOIA Program Specialist
www.dhs.gov

Case 1:13-cv-00260-JEB Document 10-4 Filed 06/28/13 Page 1 of 18
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Case 1:13-cv-00260-JEB Document 10-5 Filed 06/28/13 Page 1 of 3
EXHIBIT 5

Case 1:13-cv-00260-JEB Document 10-5 Filed 06/28/13 Page 2 of 3

Case 1:13-cv-00260-JEB Document 10-5 Filed 06/28/13 Page 3 of 3

Case 1:13-cv-00260-JEB Document 10-6 Filed 06/28/13 Page 1 of 2
EXHIBIT 6

Case 1:13-cv-00260-JEB Document 10-6 Filed 06/28/13 Page 2 of 2

EPIC v. DHS, Civil Action No. 12-260 Vaughn Index

Document:

1

Page Range:

1 – 30 (Production PDF)

Document description: NCC STANDARD OPERATING PROCEDURE (SOP) 303

Exemptions protecting information from release: (b)(6), (b)(7)(c), (b)(7)(e), (b)(7)(f)

Case 1:13-cv-00260-JEB Document 10-7 Filed 06/28/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ELECTRONIC PRIVACY

)

INFORMATION CENTER,

)

)

Plaintiff,

)

)

v.

)

Case No. 1:13-CV-260 (JEB)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant.

)

____________________________________)

PROPOSED ORDER Upon consideration of Defendant’s Motion for Summary Judgment and all related filings, it is hereby ORDERED that the motion is GRANTED; and it is FURTHER ORDERED that judgment be entered in favor of Defendant. SO ORDERED.

Dated: ________________

______________________________ JAMES E. BOASBERG United States District Judge

1

 </s> Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY INFORMATION

)

CENTER

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF

)

HOMELAND SECURITY

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 13-00260 (JEB)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff Electronic Privacy Information Center hereby opposes Defendant U.S.

Department of Homeland Security’s motion for summary judgment, and cross-moves for

summary judgment pursuant to Federal Rule of Civil Procedure 56(a). EPIC respectfully refers

the Court to the accompanying memorandum in support of this cross-motion.

Dated: July 26, 2013

Respectfully submitted,
MARC ROTENBERG President and Executive Director
/s/ Ginger P. McCall_____ GINGER P. MCCALL (DC Bar No. 1001104)
DAVID JACOBS
 JULIA HORWITZ

 Electronic Privacy


 Admitted to practice in New York, admission pending in D.C. 

 Admitted to practice in Maryland, admission pending in D.C.

1

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 2 of 18 Information Center 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 Telephone: (202) 483-1140 Fax: (202) 483-1248 mccall@epic.org Attorneys for Plaintiff
2

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 3 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY INFORMATION

)

CENTER

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF

)

HOMELAND SECURITY

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 13-00260 (JEB)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION This case involves a Freedom of Information Act (“FOIA”) request filed by the Electronic Privacy Information Center (“EPIC”) for a document known as “Standard Operating Procedure 303” (“SOP 303”). SOP 303 describes a process for the government’s deactivation of wireless communications networks in a specific area or an entire metropolitan region. Because the ability to shut down an entire communications network threatens both freedom of speech and public safety, EPIC sought release of SOP 303 to facilitate public awareness and discussion. The Department of Homeland Security (“DHS”) claims that it cannot release SOP 303 because doing so would reveal techniques or procedures for law enforcement investigations or prosecutions. But DHS has demonstrated no connection between the text of SOP 303 and any conceivable investigation or prosecution. DHS also claims that releasing SOP 303 could endanger the lives or physical safety of individuals. However, the speculative risk to unidentified

3

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 4 of 18
persons near a nonexistent bomb at an indeterminate date is far too attenuated to justify withholding SOP 303. Thus, the Court should deny DHS’s motion and grant EPIC’s crossmotion. At a minimum, the Court should ensure that the agency disclose any segregable information that is subject to disclosure under the Act.
FACTUAL AND PROCEDURAL BACKGROUND On July 10, 2012, EPIC submitted a FOIA request to DHS for information regarding Standard Operating Procedure 303 (“SOP 303”). See EPIC FOIA Request, Dkt. 10-1. SOP 303 codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” Id. at 2. EPIC noted that the government’s deactivation of entire communication networks raised serious First Amendment and public safety concerns, and said that it was “impossible to have an informed debate on the need for additional shutdown procedures without public information on the provisions of SOP 303.” Id. at 3. To that end, EPIC requested three specific records from DHS: 1. The full text of Standard Operating Procedure 303; 2. The full text of the pre-determined “series of questions” that determines if a shutdown is necessary; 3. Any executing protocols or guidelines related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations. Id. at 4. DHS acknowledged the request on July 24, 2012, conditionally granting a fee waiver and assigning the request Reference Number DHS/OS/PRIV 12-0598. DHS Request Acknowledgement, Dkt. 10-4, at 13-14. DHS then granted itself a 10-day extension due to the “unusual circumstance” that EPIC’s FOIA Request is “of substantial interest” to two or more components of DHS or another agency. Id. at 13.
4

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 5 of 18
On August 21, 2012, DHS provided its final response, claiming that the agency was “unable to locate or identify any responsive records.” DHS Determination, Dkt. 10-3, at 2. EPIC appealed the adequacy of DHS’s search on September 13, 2012, setting forth in detail the evidence for the existence of SOP 303 and for its location within one or more DHS subcomponents. EPIC FOIA Appeal, Dkt. 10-4, at 2. DHS acknowledged EPIC’s appeal on October 25, 2012, but failed to make a determination with respect to EPIC’s appeal within twenty days, as required by the FOIA. DHS Appeal Acknowledgement (attached as Ex. 1).
On February 27, 2013, EPIC filed EPIC filed this lawsuit under the FOIA, 5 U.S.C. § 552. See Compl., Dkt. 1. After filing the complaint, EPIC received a letter from the United States Coast Guard Office of the Chief Administrative Law Judge. Administrative Decision Letter, Dkt. 10-5. The letter indicated that “the record fails to demonstrate that the Privacy Office conducted an adequate search for responsive records” and stated that the filed would be remanded for further review. Id. at 2.
On June 28, 2013, DHS filed its motion for summary judgment and provided a copy of SOP 303 to EPIC. With the exception of a few subject headings, the document was entirely redacted. The agency cited FOIA exemptions 6, 7(C), 7(E), and 7(F).1 See SOP 303 (attached as Ex. 2). EPIC now opposes the government’s motion for summary judgment and cross-moves for summary judgment.
STANDARD OF REVIEW The U.S. Supreme Court “repeatedly has stressed the fundamental principle of public access to Government documents that animates the FOIA.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52 (1989). As the Court has previously explained, “[t]he basic purpose of
1 EPIC is not challenging the assertion of Exemptions 6 and 7(C).
5

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 6 of 18
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); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (knowledge of “what the Government is up to” is “a structural necessity in a real democracy”) (internal quotation omitted). “In enacting FOIA, Congress struck the balance it thought right—generally favoring disclosure, subject only to a handful of specified exemptions—and did so across the length and breadth of the Federal Government.” Milner v. Dep't of the Navy, 131 S. Ct. 1259, 1266 (2011). The FOIA’s “basic purpose reflect[s] a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 36061 (1976), quoting S. Rep. No. 89-813, at 3 (1965). FOIA was meant to be a “disclosure statute,” not a “withholding statute.” Milner, 131 S. Ct. at 1262, and thus the law “mandates a strong presumption in favor of disclosure.” EPIC v. Dep’t of Justice, 511 F. Supp. 2d 56, 64 (D.D.C. 2007) (internal citations omitted).
The FOIA includes exemptions from disclosure, “[b]ut these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Pub. Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008) (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)) (internal quotation marks omitted). Therefore FOIA exemptions “must be narrowly construed.” Id. “The statute's goal is broad disclosure, and the exemptions must be given a narrow compass.” Milner, 131 S. Ct. at 1261 (internal citations omitted). Furthermore, “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); see also EPIC v. Dep’t of Homeland Security, 384 F. Supp. 2d 100, 106 (D.D.C. 2005). Where the government has not carried this burden, summary judgment in favor
6

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 7 of 18
of the Plaintiff is appropriate. See, e.g., U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980).
ARGUMENT I. DHS May Not Withhold SOP 303 Under Exemption 7(E) Because it was Not
Created “for Law Enforcement Investigations or Prosecutions” An agency seeking to withhold records under Exemption 7(E) must satisfy two primary statutory elements. First, the record must be “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). The D.C. Circuit has referred to this element as “the threshold requirement of Exemption 7.” See, e.g., Tax Analysts v. I.R.S., 294 F.3d 71, 77 (D.C. Cir. 2002). Second, disclosure of the record must result in the harm recognized by Exemption 7(E): revealing either “techniques and procedures for law enforcement investigations or prosecutions,” or “guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” See 5 U.S.C. § 552(b)(7)(E). These elements require different showings. See, e.g., Blackwell v. F.B.I., 646 F.3d 37, 4042 (D.C. Cir. 2011) (analyzing first whether FBI files regarding the requester’s prosecution were compiled for a law enforcement purpose, then whether their disclosure would reveal techniques or procedures for investigations or prosecutions). In particular, the threshold requirement of a law enforcement “purpose” is much broader than the requirement that disclosure reveal “techniques and procedures for law enforcement investigations or prosecutions.” See Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982) (explaining that “Congress intended that ‘law enforcement purpose’ be broadly construed”); Tax Analysts v. I.R.S., 294 F.3d 71, 79 (D.C. Cir. 2002) (noting that in 1986 Congress broadened Exemption 7’s threshold requirement by “deleting any requirement that the information be ‘investigatory’”). Accordingly, the Exemption 7 threshold covers law enforcement records unconnected to investigations or prosecutions. See
7

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 8 of 18
Id. (“It is clear that, under the amended threshold of Exemption 7, an agency may seek to block the disclosure of internal agency materials relating to guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions, even when the materials have not been compiled in the course of a specific investigation.”).
The text of the statute, however, reveals that the rest of Exemption 7(E) may not be so easily satisfied. Indeed, many withholdings pass the “law enforcement purposes” requirement but fail the “techniques and procedures” requirement. See, e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 182, 187-88 (D.D.C. 2008) (“The Court agrees with defendant that [Sensitive Security Record]s are compiled for law enforcement purposes. However, the Court cannot see how disclosure of the information plaintiff seeks would reveal techniques, procedures, or guidelines used by the Secret Service.”); Long v. U.S. Dep't of Justice, 450 F. Supp. 2d 42, 79 order amended on reconsideration, 457 F. Supp. 2d 30 (D.D.C. 2006) amended, 479 F. Supp. 2d 23 (D.D.C. 2007) (finding that certain program category fields from databases of criminal investigations were compiled for law enforcement purposes but were not exempt under 7(E) because “the Department has failed to identify any law enforcement technique or procedure that would be disclosed upon release of the information”).
Specifically, the harm recognized by Exemption 7(E) requires that law enforcement techniques, procedures, or guidelines be used for “law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). Thus, it is not sufficient that the records in question simply disclose “techniques and procedures,” or even that they disclose “techniques and procedures” related to “law enforcement purposes.” Rather, the text of the statute plainly states that records must disclose “techniques and procedures for law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E) (emphasis added); see also Duncan v. Walker, 533 U.S.
8

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 9 of 18
167, 174 (2001) (“It is our duty to give effect, if possible, to every clause and word of a statute.”) (quotation marks omitted); Cozen O'Connor v. U.S. Dep't of Treasury, 570 F. Supp. 2d 749, 785 (E.D. Pa. 2008) (“[Exemption 7(E)] is construed literally.”); Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Prot., CIV.A. 04-00377 (JDB), 2006 WL 1826185, at *8 (D.D.C. June 30, 2006) (“[B]oth clauses of Exemption 7(E) require that the information shielded, at the very least, must be capable of use in law enforcement investigations or prosecutions.”).
Here, DHS argues that SOP 303 satisfies Exemption 7’s “law enforcement purpose” threshold requirement because it is a measure designed to prevent terrorism, specifically “a process for shutting down wireless networks to prevent bombings,” Def.’s Mot. Summ. J., Dkt. 10, at 10. DHS also argues that SOP 303 satisfies the more specific, “techniques and procedures” requirements of Exemption 7(E) because it is a “technique for coordinating an orderly process for disabling a wireless telecommunications network to prevent, among other things, the use of the network to remotely detonate an explosive device.” Def.’s Mot. Summ. J., Dkt. 10, at 11-12. Despite the clear statutory requirements of 7(E), missing from DHS’s argument is any claim that SOP 303 is a technique used “for law enforcement investigations or prosecutions.” SOP 303 may indeed constitute a “technique,” but it is a technique for “disabling a wireless telecommunications network,” id. at 11, not a technique for a law enforcement investigation or prosecution. Although preventative measures may satisfy Exemption 7’s threshold, they may not satisfy the rest of the exemption absent a connection to a law enforcement investigation or prosecution. DHS offers no explanation for how SOP 303 plays any role in investigations or prosecutions, and no conceivable connection exists. Indeed, DHS’s enabling statute expressly gives primarily authority for terrorism investigations and prosecutions to other agencies. See 6
9

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 10 of 18
U.S.C. § 111(b)(2) (“[P]rimary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over the acts in question.”)
DHS objects that requiring a connection to an investigation or prosecution reflects a “crabbed notion[] of law enforcement techniques.” Def.’s Mot. Summ. J., Dkt. 10, at 12. Perhaps so, but that is the notion required by the text of the statute. DHS’s interpretation effectively “tak[es] a red pen to the statute,” Milner v. Dep’t of the Navy, 562 U.S. __, 131 S. Ct. 1259, 1267 (2011), crossing out the words “for law enforcement investigations or prosecutions.” Accordingly, its withholding under Exemption 7(E) is improper. II. DHS Has Unlawfully Withheld SOP 303 Under Exemption 7(F)
A. DHS Misinterprets the “Any Individual” Standard Under Exemption 7(F), information is protected where disclosure would “endanger the life or safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “In determining whether Exemption 7(F) applies, courts look for some nexus between disclosure and possible harm and whether deletions were narrowly made to avert the possibility of such harm.” Boehm v. F.B.I., No. 092173, 2013 WL 2477091 (D.D.C. June 10, 2013). While Exemption 7(F) “may be invoked to protect ‘any individual’ reasonably at risk of harm,” the agency must focus its deletions “narrowly.” Long v. U.S. Dep't of Justice, 450 F. Supp. 2d 42, 80 order amended on reconsideration, 457 F. Supp. 2d 30 (D.D.C. 2006) amended, 479 F. Supp. 2d 23 (D.D.C. 2007). Thus, where the Department of Justice “failed to demonstrate with sufficient specificity that releasing [extensive] information reasonably could be expected to endanger the life or physical safety of any individual,” the agency was not permitted to assert Exemption 7(F). Id. The Court noted of the DOJ, “[I]t offers little more than conclusory assertions that disclosure will increase
10

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 11 of 18
the chances that third parties will be harmed in some way. Such unsupported speculation cannot serve as a justification for withholding information under Exemption 7(F).” Id.
Generally, this court has defined Exemption 7(F) as the “exemption [that] affords broad protection to the identities of individuals mentioned in law enforcement files ..., including any individual reasonably at risk of harm.” Brestle v. Lappin, No. 11-1771, 2013 WL 3107486 (D.D.C. June 20, 2013), (citing Quinto v. DOJ, 711 F.Supp.2d 1, 8 (D.D.C. 2010)). Thus, in Brestle, Quinto, and Boehm, 7(F) was properly asserted where releasing the records would reveal the identity of police informants, who might then be at risk of retaliation by either the plaintiff or some member of the public. Brestle, No.11-1771, at *8; Quinto, 711 F.Supp.2d at 8; Boehm, No. 09-2173, at *22. The connection between individuals named in law enforcement records, their participation in informant activities, and a risk of retaliation if their names were revealed all form a “nexus between disclosure and possible harm,” meriting “narrow deletions to avert the possibility of such harm.” Boehm, No. 09-2173, at *22. DHS cannot form that nexus here.
The “individuals” that DHS refers to in its Motion for Summary Judgment are “individuals near unexploded bombs.” Def.’s Mot. Summ. J., Dkt. 10, at 15. This identification of “individuals” is insufficient. According to DHS, there are no identified individuals “mentioned in law enforcement files” whom the agency seeks to protect by invoking Exemption 7(F). As a result, DHS cannot establish the “nexus” required between disclosure of the individuals mentioned in their records and a risk of harm to those individuals. The “nexus” test requires that the agency link the disclosure of the “individual’s” identity to a risk of harm. DHS cannot make that link, since the agency has identified no individuals whose identities it seeks to protect under Exemption 7(F).
DHS cites Amuso for the proposition that “While courts generally have applied
11

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 12 of 18
Exemption 7(F) to protect law enforcement personnel or other specified third parties, by its terms, the exemption is not so limited; it may be invoked to protect ‘any individual’ reasonably at risk of harm.” Amuso v. DOJ, 600 F. Supp. 2d 78, 101 (D.D.C. 2009). However, Exemption 7(F) must apply to individuals who can be identified with some degree of specificity. In ACLU v. Dep’t of Defense, 543 F. 3d 59 (2d. Cir. 2008), the court noted that “the phrase ‘any individual’ in exemption 7(F) may be flexible, but it is not vacuous.” Id. at 67. The court continued:
[I]t is true that the statute does not read ‘any named individual,’ and we thus understand it to include individuals identified in some way other than by name – such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group. This does not, however, mean that the individual contemplated by exemption 7(F) need not be identified at all, or may be identified as a member of a vast population. Id. at 67-8. The Second Circuit explained that “by requiring a showing of danger to an individual, Congress provided a constraint limiting exemption 7(F) to its intended scope – the protection of individuals subject to a non-speculative risk of harm incident to a law enforcement investigation.” ACLU, 543 F. 3d. at 80. Contrary to DHS’s analysis, Amuso does not permit an agency to forgo the “nexus” test and simply identify a possible risk without also identifying the individual whom disclosure would put at risk. The agency need not identify these individuals by name, but it must nevertheless show that there are certain individuals in need of 7(F) protection. Id. All of DHS’s “individuals” are hypothetical; there are no names or identifying characteristics about DHS’s “individuals” that would put them in any danger if that information were released. In fact, the Second Circuit has explicitly noted that the “individual” at issue may not be “a member of a vast population.” Id. at 68. A statute written to protect individuals from risk of harm if their law enforcement activity were exposed cannot also support an interpretation that prevents an agency
12

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from disclosing documents that do not name or even contemplate any individuals. DHS has misunderstood the function of the 7(F) exemption, and cannot withhold SOP 303 under this provision.
B. DHS Improperly Relies on the Holding in Living Rivers DHS attempts to avoid the fact that it cannot identify any “individual” for the purpose of the nexus test by relying on an analogy to the Living Rivers case in the Utah District Court. However, the agency mischaracterizes the holding of the Living Rivers decision and rests its argument on a faulty analogy. In Living Rivers, the court held that the Bureau of Reclamation’s properly withheld maps that described the effects of inundation on “the downstream areas that would be flooded by a breach of Hoover Dam or Glen Canyon Dam.” Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313, 1321 (D. Utah 2003). Since terrorists could use the geographical data provided by the maps to plan attacks on downstream areas, the court held that release of the maps could jeopardize the safety of the downstream population. Id. at 1322. DHS analogizes the American public to the downstream population in Living Rivers, asserting that “[r]eleasing information regarding this protocol would enable ‘bad actors’ to blunt its usefulness . . . Neutering this protocol could reasonably be expected to endanger the physical safety of those near a bomb by increasing the chances that the process will fail and the bomb will explode.” Def.’s Mot. Summ. J., Dkt. 10, at 15. This analogy fails, however, since the population at risk in Living Rivers’ was a specific, identifiable group, and the population that DHS seeks to protect in this case is some hypothetical group of the public. Living Rivers differs from most successful 7(F) withholdings in that the “individuals” protected by the withholding were not at risk from a specific existing threat. Id. at 1321. The “terrorists” contemplated in Living Rivers were hypothetical. However, the population at risk was specific and identifiable. Unlike the
13

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 14 of 18
instant case, the government in Living Rivers identified the specific region whose inhabitants would be affected by a terrorist attack on the dams. In this case, not only is the activity hypothetical, but so too are the “individuals” -- the affected population could be any part of the American public – essentially, the “identified” population is the entire United States. III. DHS Has Failed to Segregate and Release Non-Exempt Portions of Records
The FOIA requires the government to disclose any “reasonably segregable portion of a record.” 5 U.S.C. § 552(b); see Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“If a document contains exempt information, the agency must still release ‘any reasonably segregable portion’ after deletion of the nondisclosable portions.”) (citation omitted). “The ‘segregability’ requirement applies to all documents and all exemptions in the FOIA.” Ctr. for Auto Safety v. Envtl. Prot. Agency, 731 F.2d 16, 21 (D.C. Cir. 1984). As with all parts of FOIA litigation, the burden is on the government to “provide a detailed justification for its nonsegregability.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (internal quotation marks omitted). This includes “a statement of [the government’s] reasons,” and a “descri[ption of] what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document.” Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Simply claiming that a segregability review has been conducted is insufficient. Oglesby, 79 F.3d at 1180. Finally, district courts have an “affirmative duty to consider the segregability issue sua sponte.” Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).
Here, DHS failed to perform an adequate segregability analysis. DHS released a copy of SOP 303 to EPIC that was almost entirely redacted, stating that “[n]o other segments of the document could be released without compromising the interests protected by the exemptions
14

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 15 of 18
invoked by DHS.” Def.’s Mot. Summ. J., Dkt. 10, at 15 (citing Holzer Decl. ¶ 22). But this statement is a conclusion, not an explanation. “[U]nless the segregability provision of the FOIA is to be nothing more than a precatory precept, agencies must be required to provide the reasons behind their conclusions in order that they may be challenged by FOIA plaintiffs and reviewed by the courts.” Mead Data Cent., Inc., 566 F.2d at 261 (emphasis added). DHS has provided nothing more than “empty invocation[s] of the segregability standard” that the Court should reject. Judicial Watch, Inc. v. Dep’t of Homeland Sec., No. 11-00604, 2012 WL 251914, at *12 (D.D.C. Jan. 27, 2012).
Although EPIC does not bear the burden of finding segregable material, at the very least, the predetermined shutdown questions contained within SOP 303 should be segregated and released. This portion of the SOP consists of a “pre-determined series of questions that determines if a shutdown is necessary . . . .” Holzer Decl., Dkt. 10-2, ¶ 21. Even accepting DHS’s arguments regarding Exemptions 7(E) and 7(F), the questions are plainly not law enforcement techniques. Under the definition proffered by the agency, a “technique” is “a particular way of doing or of going about the accomplishment of something.” Def.’s Mot. Summ. J., Dkt. 10, at 12; see also Allard K. Lowenstein Int'l Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 678, 680-82 (2d Cir. 2010) (referring to the same definition of “technique”). The shutdown questions, however, are not a means of accomplishing a wireless communications shutdown; they are the means of determining whether to employ a shutdown in the first place. In other words, the shutdown questions are matters of general policy that precede the use of any specific shutdown technique.
Furthermore, release of the predetermined shutdown questions would cause no harm to law enforcement interests. Even if a technique or procedure was both compiled for law
15

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enforcement purposes and used for investigation or prosecution, the government must still demonstrate that harm would result from its disclosure. In the D.C. Circuit, this harm typically occurs where disclosure would allow bad actors to evade, defeat, or otherwise circumvent the techniques, thereby reducing their effectiveness. See Blackwell v. F.B.I., 646 F.3d 37 (D.C. Cir. 2011) (holding that techniques for computer forensic examination data collection were exempt because disclosure would reduce their effectiveness by “exposing computer forensic vulnerabilities” and “enable[ing] criminals to employ countermeasures to avoid detection” (internal quotation marks omitted)); James v. U.S. Customs and Border Prot., 549 F. Supp. 2d 1, 10 (D.D.C. 2008) (withholding the specific search techniques used on requester because disclosure would “assist in subverting the effectiveness of a particular investigative technique . . . and could enable smugglers of contraband to employ measures to neutralize those techniques” (internal quotation marks omitted)); Hidalgo v. Fed. Bureau of Investigation, 541 F. Supp. 2d 250, 254 (D.D.C. 2008) (explaining that Exemption 7(E) only allows “information about law enforcement techniques to be withheld when publication would allow perpetrators to avoid them . . .”).
Here, bad actors would not be able to use the predetermined shutdown questions alone to defeat the shutdown of wireless networks because they would still lack necessary information contained in the rest of SOP 303. In many cases, disclosure is permitted where interference with or circumvention of a technique would require additional, undisclosed information. See, e.g., Island Film, S.A. v. Dep't of the Treasury, 869 F. Supp. 2d 123, 138 (D.D.C. 2012) (rejecting withholding of database printouts because “the documents themselves do not describe OFAC's procedure for accessing certain databases in the course of its investigations”); Families for Freedom v. U.S. Customs & Border Prot., 797 F. Supp. 2d 375, 391 (S.D.N.Y. 2011) (disclosing
16

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information about a specific border control station because it did not contain “arrest statistics for each station within the Buffalo sector, which could theoretically aid circumvention of the law by publicizing the relative activity or success of Border Patrol agents in effecting apprehensions at each station”); Pub. Employees for Envtl. Responsibility (Peer), Rocky Mountain Chapter v. U.S. E.P.A., 978 F. Supp. 955, 963 (D. Colo. 1997) (disclosing material in investigative reports because it “discusses coding of confidential sources but does so without alerting the reader how to decipher the code”). SOP 303 contains multiple parts, including (1) the predetermined series of questions that determine if a shutdown is necessary, (2) authentication methods, and (3) the step-by-step shutdown process itself. See Holzer Decl. ¶ 25. Releasing the predetermined shutdown questions would disclose only one part of the SOP, but effectively circumventing a shutdown would require information about the entire procedure. In fact, the predetermined shutdown questions are akin to broad policy regarding the appropriate circumstances for wireless shutdown that is too general to enable interference with any specific network deactivation. Accordingly, they should be segregated and released.
CONCLUSION For the foregoing reasons, the Court should deny the government’s motion for summary judgment and grant Plaintiffs’ cross-motion for summary judgment. At a minimum, the Court should order DHS to conduct an adequate segregability review of SOP 303.

Dated: July 26, 2013

Respectfully submitted, MARC ROTENBERG President and Executive Director /s/ Ginger P. McCall_____ GINGER P. MCCALL (DC Bar No. 1001104)
17

Case 1:13-cv-00260-JEB Document 11 Filed 07/26/13 Page 18 of 18 DAVID JACOBS
 JULIA HORWITZ

 Electronic Privacy Information Center 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 Telephone: (202) 483-1140 Fax: (202) 483-1248 mccall@epic.org Attorneys for Plaintiff

 Admitted to practice in New York, admission pending in D.C. 

 Admitted to practice in Maryland, admission pending in D.C.
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Case 1:13-cv-00260-JEB Document 11-3 Filed 07/26/13 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY

)

INFORMATION CENTER,

)

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY

)

)

Defendant

)

______________________ ___________________ )

Case No. 1:13-CV-260 (JEB)

PLAINTIFF’S STATEMENT OF DISPUTED MATERIAL FACTS AS TO WHICH THERE IS A GENUINE ISSUE
Pursuant to Local Civil Rule 7(h), Plaintiff Electronic Privacy Information Center (“EPIC”) submits the following statement of disputed and undisputed facts in opposition to Defendant Department of Homeland Security’s motion for summary judgment and in support of Plaintiff’s cross-motion for summary judgment. This statement identifies the portions of Defendant’s Statement of Material Facts Not In Dispute, Dkt. 10 at 19, as to which Plaintiff contends there exists a genuine issue.
1. Plaintiff agrees that there is no genuine issue as to the facts set forth in paragraphs 1, 3-20, 22, and 24 of Defendant’s Statement.
2. Plaintiff contends that there exist genuine issues of material fact as to the matters set forth in paragraphs 2, 21, 23, and 25 of Defendant’s Statement, as explained below.
3. Paragraph 2 of Defendant’s Statement asserts that “Standard Operating Procedure (SOP) 303 is a document that details a process for the ‘deactivation of wireless networks’ primarily to ‘deter the triggering of radio-activated improvised explosive devices.’” Def.’s Statement ¶ 3. Plaintiff does not dispute that SOP 303 includes details of a process to “deactivate wireless networks,” but Plaintiff asserts that there is a genuine issue as to whether details of the deactivation process are all that is included in SOP 303.

Case 1:13-cv-00260-JEB Document 11-3 Filed 07/26/13 Page 2 of 2
4. In support of this assertion, Plaintiff has attached pages from the President’s National Security Telecommunications Advisory Committee’s 2006-2007 Report on “Termination of Cellular Networks During Emergency Situations.” Exhibit 4. This report indicates that SOP 303 also includes a predetermined series of questions used to decide when deactivation is appropriate.
5. Paragraph 21of Defendant’s Statement asserts that DHS determined that “SOP 303 is a record compiled for law enforcement purposes and the release of portions of SOP 303 would disclose the techniques and procedures for law enforcement investigations,” and that DHS invokes Exemption 7(E) to justify this withholding Def.’s Statement at ¶ 21. Plaintiff disputes the adequacy of the explanation for these conclusions.
6. Paragraph 23 of Defendant’s Statement asserts that DHS determined that “SOP 303 is a record compiled for law enforcement purposes and the release of portions of SOP 303 could reasonably be expected to endanger the life or safety of an individual,” and that DHS invokes Exemption 7(F) to justify this withholding. Def.’s Statement at ¶ 23-4. Plaintiff disputes these conclusions because the agency has failed to identify an identifiable individual or individuals whose safety would be threatened by disclosure, and because the threat invoked by DHS is hypothetical and only tangentially related to the safety of the unidentified individuals.
7. Paragraph 25 of Defendant’s Statement asserts, “The agency determined that portions of SOP 303 are non-exempt, and it is releasing those portions to EPIC.” Def.’s Statement at ¶ 23. Plaintiff does not dispute that those portions of SOP 303 are non-exempt, but Plaintiff asserts that there is a genuine issue as to whether Defendant has conducted a sufficient segregability analysis to identify all non-exempt portions of SOP 303.
!

Case 1:13-cv-00260-JEB Document 11-4 Filed 07/26/13 Page 1 of 2

The President’s National Security Telecommunications Advisory Committee

2006-2007 NSTAC Issue Review u PREVIOUSLY ADDRESSED ISSUES

Termination of Cellular Networks During Emergency Situations

To facilitate more coordinated action, the NSTAC recommended that the President direct his departments and agencies to:

Investigation Group / Period of Activity
Cellular Service Shutdown Ad Hoc Working Group August 2005 – January 2006
Issue Background As a direct result of the bombings that took place in the London transportation system in July 2005, U.S. authorities initiated the shut down of cellular network services in the Lincoln, Holland, Queens, and Brooklyn Battery Tunnels. The Federal Government based this precautionary measure on the suspicion that similar attacks might also be perpetrated in the tunnels leading to and from New York City. Though the decision was rooted in vital security concerns, the resulting situation, undertaken without prior notice to wireless carriers or the public, created disorder for both Government and the private sector at a time when use of the communications infrastructure was most needed. Shortly following these activities, the National Coordinating Center (NCC) hosted a teleconference to discuss the need to develop a process for determining if and when cellular shutdown activities should be undertaken in the future in light of the serious impact these efforts could have had, not only on access by the public to emergency communications services during these situations, but also on public trust in the communications infrastructure in general.
History of NSTAC Actions and Recommendations These actions highlighted, within the President’s National Security Telecommunications Advisory Committee (NSTAC) community, the need for a process to ensure that future similar decisions meet the Nation’s security goals and ensure the protection of critical infrastructures. Consequently, on August 18, 2005, the NSTAC established a Principal level task force to formulate, on an expedited basis, recommendations to effect efﬁcient coordinated action between industry and Government in times of national emergency.

u Work to implement a simple process, building upon existing processes, with the Department of Homeland Security (DHS) and National Communications System (NCS) coordination enabling the Government to speak with one voice, provide decision makers with relevant information, and provide wireless carriers with Governmentauthenticated decisions for implementation; and
u Achieve rapid implementation through the Homeland Security Advisor of each State, in conjunction with the NCS and the Ofﬁce of State and Local Government Coordination, DHS.
The group concluded its activities upon NSTAC approval of the Letter and recommendations in January 2006.
Actions Resulting from NSTAC Recommendations In support of the recommendations, the NCS approved Standard Operating Procedure (SOP) 303, “Emergency Wireless Protocols,” on March 9, 2006, codifying a shutdown and restoration process for use by commercial and private wireless networks during national crises. Under the process, the NCC will function as the focal point for coordinating any actions leading up to and following the termination of private wireless network connections, both within a localized area, such as a tunnel or bridge, and within an entire metropolitan area. The decision to shutdown service will be made by State Homeland Security Advisors, their designees, or representatives of the DHS Homeland Security Operations Center. Once the request has been made by these entities, the NCC will operate as an authenticating body, notifying the carriers in the affected area of the decision. The NCC will also ask the requestor a series of questions to determine if the shutdown is a necessary action. After making the determination that the shutdown is no longer required, the NCC will initiate a similar process to reestablish service. The NCS continues to work with the Ofﬁce of State and

139

Case 1:13-cv-00260-JEB Document 11-4 Filed 07/26/13 Page 2 of 2

PREVIOUSLY ADDRESSED ISSUES t 2006-2007 NSTAC Issue Review

The President’s National Security Telecommunications Advisory Committee

Local Government Coordination at DHS, and the Homeland Security Advisor for each State to initiate the rapid implementation of these procedures.
Reports Issued
NSTAC Cellular Shutdown Letter to the President, January 2006

140

Case 1:13-cv-00260-JEB Document 11-5 Filed 07/26/13 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY INFORMATION

)

CENTER

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF

)

HOMELAND SECURITY

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 13-00260 (JEB)

[PROPOSED] ORDER

Upon consideration of Defendant’s Motion for Summary Judgment, Plaintiffs’ Cross-

Motion for Summary Judgment, and related filings, it is hereby:

ORDERED that Defendants’ Motion for Summary Judgment is DENIED;

ORDERED that Plaintiffs’ Cross-Motion for Summary Judgment is GRANTED;

ORDERED that Defendant shall produce all records responsive to Plaintiff’s Freedom of

Information Act request

Dated: ___________________.

____________________________________ JAMES E. BOASBERG United States District Judge

 </s> Case 1:13-cv-00260-JEB Document 12 Filed 07/26/13 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY INFORMATION

)

CENTER

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF

)

HOMELAND SECURITY

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 13-00260 (JEB)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff Electronic Privacy Information Center hereby opposes Defendant U.S.

Department of Homeland Security’s motion for summary judgment, and cross-moves for

summary judgment pursuant to Federal Rule of Civil Procedure 56(a). EPIC respectfully refers

the Court to the accompanying memorandum in support of this cross-motion.

Dated: July 26, 2013

Respectfully submitted,
MARC ROTENBERG President and Executive Director
/s/ Ginger P. McCall_____ GINGER P. MCCALL (DC Bar No. 1001104)
DAVID JACOBS JULIA HORWITZ Electronic Privacy

 Admitted to practice in New York, admission pending in D.C.  Admitted to practice in Maryland, admission pending in D.C.
1

Case 1:13-cv-00260-JEB Document 12 Filed 07/26/13 Page 2 of 18 Information Center 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 Telephone: (202) 483-1140 Fax: (202) 483-1248 mccall@epic.org Attorneys for Plaintiff
2

Case 1:13-cv-00260-JEB Document 12 Filed 07/26/13 Page 3 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY INFORMATION

)

CENTER

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF

)

HOMELAND SECURITY

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)

Defendant.

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_________________________________________ )

Civil Action No. 13-00260 (JEB)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION This case involves a Freedom of Information Act (“FOIA”) request filed by the Electronic Privacy Information Center (“EPIC”) for a document known as “Standard Operating Procedure 303” (“SOP 303”). SOP 303 describes a process for the government’s deactivation of wireless communications networks in a specific area or an entire metropolitan region. Because the ability to shut down an entire communications network threatens both freedom of speech and public safety, EPIC sought release of SOP 303 to facilitate public awareness and discussion. The Department of Homeland Security (“DHS”) claims that it cannot release SOP 303 because doing so would reveal techniques or procedures for law enforcement investigations or prosecutions. But DHS has demonstrated no connection between the text of SOP 303 and any conceivable investigation or prosecution. DHS also claims that releasing SOP 303 could endanger the lives or physical safety of individuals. However, the speculative risk to unidentified

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persons near a nonexistent bomb at an indeterminate date is far too attenuated to justify withholding SOP 303. Thus, the Court should deny DHS’s motion and grant EPIC’s crossmotion. At a minimum, the Court should ensure that the agency disclose any segregable information that is subject to disclosure under the Act.
FACTUAL AND PROCEDURAL BACKGROUND On July 10, 2012, EPIC submitted a FOIA request to DHS for information regarding Standard Operating Procedure 303 (“SOP 303”). See EPIC FOIA Request, Dkt. 10-1. SOP 303 codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” Id. at 2. EPIC noted that the government’s deactivation of entire communication networks raised serious First Amendment and public safety concerns, and said that it was “impossible to have an informed debate on the need for additional shutdown procedures without public information on the provisions of SOP 303.” Id. at 3. To that end, EPIC requested three specific records from DHS: 1. The full text of Standard Operating Procedure 303; 2. The full text of the pre-determined “series of questions” that determines if a shutdown is necessary; 3. Any executing protocols or guidelines related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations. Id. at 4. DHS acknowledged the request on July 24, 2012, conditionally granting a fee waiver and assigning the request Reference Number DHS/OS/PRIV 12-0598. DHS Request Acknowledgement, Dkt. 10-4, at 13-14. DHS then granted itself a 10-day extension due to the “unusual circumstance” that EPIC’s FOIA Request is “of substantial interest” to two or more components of DHS or another agency. Id. at 13.
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On August 21, 2012, DHS provided its final response, claiming that the agency was “unable to locate or identify any responsive records.” DHS Determination, Dkt. 10-3, at 2. EPIC appealed the adequacy of DHS’s search on September 13, 2012, setting forth in detail the evidence for the existence of SOP 303 and for its location within one or more DHS subcomponents. EPIC FOIA Appeal, Dkt. 10-4, at 2. DHS acknowledged EPIC’s appeal on October 25, 2012, but failed to make a determination with respect to EPIC’s appeal within twenty days, as required by the FOIA. DHS Appeal Acknowledgement (attached as Ex. 1).
On February 27, 2013, EPIC filed EPIC filed this lawsuit under the FOIA, 5 U.S.C. § 552. See Compl., Dkt. 1. After filing the complaint, EPIC received a letter from the United States Coast Guard Office of the Chief Administrative Law Judge. Administrative Decision Letter, Dkt. 10-5. The letter indicated that “the record fails to demonstrate that the Privacy Office conducted an adequate search for responsive records” and stated that the filed would be remanded for further review. Id. at 2.
On June 28, 2013, DHS filed its motion for summary judgment and provided a copy of SOP 303 to EPIC. With the exception of a few subject headings, the document was entirely redacted. The agency cited FOIA exemptions 6, 7(C), 7(E), and 7(F).1 See SOP 303 (attached as Ex. 2). EPIC now opposes the government’s motion for summary judgment and cross-moves for summary judgment.
STANDARD OF REVIEW The U.S. Supreme Court “repeatedly has stressed the fundamental principle of public access to Government documents that animates the FOIA.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52 (1989). As the Court has previously explained, “[t]he basic purpose of
1 EPIC is not challenging the assertion of Exemptions 6 and 7(C).
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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); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (knowledge of “what the Government is up to” is “a structural necessity in a real democracy”) (internal quotation omitted). “In enacting FOIA, Congress struck the balance it thought right—generally favoring disclosure, subject only to a handful of specified exemptions—and did so across the length and breadth of the Federal Government.” Milner v. Dep't of the Navy, 131 S. Ct. 1259, 1266 (2011). The FOIA’s “basic purpose reflect[s] a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 36061 (1976), quoting S. Rep. No. 89-813, at 3 (1965). FOIA was meant to be a “disclosure statute,” not a “withholding statute.” Milner, 131 S. Ct. at 1262, and thus the law “mandates a strong presumption in favor of disclosure.” EPIC v. Dep’t of Justice, 511 F. Supp. 2d 56, 64 (D.D.C. 2007) (internal citations omitted).
The FOIA includes exemptions from disclosure, “[b]ut these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Pub. Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008) (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)) (internal quotation marks omitted). Therefore FOIA exemptions “must be narrowly construed.” Id. “The statute's goal is broad disclosure, and the exemptions must be given a narrow compass.” Milner, 131 S. Ct. at 1261 (internal citations omitted). Furthermore, “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); see also EPIC v. Dep’t of Homeland Security, 384 F. Supp. 2d 100, 106 (D.D.C. 2005). Where the government has not carried this burden, summary judgment in favor
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of the Plaintiff is appropriate. See, e.g., U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980).
ARGUMENT I. DHS May Not Withhold SOP 303 Under Exemption 7(E) Because it was Not
Created “for Law Enforcement Investigations or Prosecutions” An agency seeking to withhold records under Exemption 7(E) must satisfy two primary statutory elements. First, the record must be “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). The D.C. Circuit has referred to this element as “the threshold requirement of Exemption 7.” See, e.g., Tax Analysts v. I.R.S., 294 F.3d 71, 77 (D.C. Cir. 2002). Second, disclosure of the record must result in the harm recognized by Exemption 7(E): revealing either “techniques and procedures for law enforcement investigations or prosecutions,” or “guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” See 5 U.S.C. § 552(b)(7)(E). These elements require different showings. See, e.g., Blackwell v. F.B.I., 646 F.3d 37, 4042 (D.C. Cir. 2011) (analyzing first whether FBI files regarding the requester’s prosecution were compiled for a law enforcement purpose, then whether their disclosure would reveal techniques or procedures for investigations or prosecutions). In particular, the threshold requirement of a law enforcement “purpose” is much broader than the requirement that disclosure reveal “techniques and procedures for law enforcement investigations or prosecutions.” See Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982) (explaining that “Congress intended that ‘law enforcement purpose’ be broadly construed”); Tax Analysts v. I.R.S., 294 F.3d 71, 79 (D.C. Cir. 2002) (noting that in 1986 Congress broadened Exemption 7’s threshold requirement by “deleting any requirement that the information be ‘investigatory’”). Accordingly, the Exemption 7 threshold covers law enforcement records unconnected to investigations or prosecutions. See
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Id. (“It is clear that, under the amended threshold of Exemption 7, an agency may seek to block the disclosure of internal agency materials relating to guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions, even when the materials have not been compiled in the course of a specific investigation.”).
The text of the statute, however, reveals that the rest of Exemption 7(E) may not be so easily satisfied. Indeed, many withholdings pass the “law enforcement purposes” requirement but fail the “techniques and procedures” requirement. See, e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 182, 187-88 (D.D.C. 2008) (“The Court agrees with defendant that [Sensitive Security Record]s are compiled for law enforcement purposes. However, the Court cannot see how disclosure of the information plaintiff seeks would reveal techniques, procedures, or guidelines used by the Secret Service.”); Long v. U.S. Dep't of Justice, 450 F. Supp. 2d 42, 79 order amended on reconsideration, 457 F. Supp. 2d 30 (D.D.C. 2006) amended, 479 F. Supp. 2d 23 (D.D.C. 2007) (finding that certain program category fields from databases of criminal investigations were compiled for law enforcement purposes but were not exempt under 7(E) because “the Department has failed to identify any law enforcement technique or procedure that would be disclosed upon release of the information”).
Specifically, the harm recognized by Exemption 7(E) requires that law enforcement techniques, procedures, or guidelines be used for “law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). Thus, it is not sufficient that the records in question simply disclose “techniques and procedures,” or even that they disclose “techniques and procedures” related to “law enforcement purposes.” Rather, the text of the statute plainly states that records must disclose “techniques and procedures for law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E) (emphasis added); see also Duncan v. Walker, 533 U.S.
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167, 174 (2001) (“It is our duty to give effect, if possible, to every clause and word of a statute.”) (quotation marks omitted); Cozen O'Connor v. U.S. Dep't of Treasury, 570 F. Supp. 2d 749, 785 (E.D. Pa. 2008) (“[Exemption 7(E)] is construed literally.”); Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Prot., CIV.A. 04-00377 (JDB), 2006 WL 1826185, at *8 (D.D.C. June 30, 2006) (“[B]oth clauses of Exemption 7(E) require that the information shielded, at the very least, must be capable of use in law enforcement investigations or prosecutions.”).
Here, DHS argues that SOP 303 satisfies Exemption 7’s “law enforcement purpose” threshold requirement because it is a measure designed to prevent terrorism, specifically “a process for shutting down wireless networks to prevent bombings,” Def.’s Mot. Summ. J., Dkt. 10, at 10. DHS also argues that SOP 303 satisfies the more specific, “techniques and procedures” requirements of Exemption 7(E) because it is a “technique for coordinating an orderly process for disabling a wireless telecommunications network to prevent, among other things, the use of the network to remotely detonate an explosive device.” Def.’s Mot. Summ. J., Dkt. 10, at 11-12. Despite the clear statutory requirements of 7(E), missing from DHS’s argument is any claim that SOP 303 is a technique used “for law enforcement investigations or prosecutions.” SOP 303 may indeed constitute a “technique,” but it is a technique for “disabling a wireless telecommunications network,” id. at 11, not a technique for a law enforcement investigation or prosecution. Although preventative measures may satisfy Exemption 7’s threshold, they may not satisfy the rest of the exemption absent a connection to a law enforcement investigation or prosecution. DHS offers no explanation for how SOP 303 plays any role in investigations or prosecutions, and no conceivable connection exists. Indeed, DHS’s enabling statute expressly gives primarily authority for terrorism investigations and prosecutions to other agencies. See 6
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U.S.C. § 111(b)(2) (“[P]rimary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over the acts in question.”)
DHS objects that requiring a connection to an investigation or prosecution reflects a “crabbed notion[] of law enforcement techniques.” Def.’s Mot. Summ. J., Dkt. 10, at 12. Perhaps so, but that is the notion required by the text of the statute. DHS’s interpretation effectively “tak[es] a red pen to the statute,” Milner v. Dep’t of the Navy, 562 U.S. __, 131 S. Ct. 1259, 1267 (2011), crossing out the words “for law enforcement investigations or prosecutions.” Accordingly, its withholding under Exemption 7(E) is improper. II. DHS Has Unlawfully Withheld SOP 303 Under Exemption 7(F)
A. DHS Misinterprets the “Any Individual” Standard Under Exemption 7(F), information is protected where disclosure would “endanger the life or safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “In determining whether Exemption 7(F) applies, courts look for some nexus between disclosure and possible harm and whether deletions were narrowly made to avert the possibility of such harm.” Boehm v. F.B.I., No. 092173, 2013 WL 2477091 (D.D.C. June 10, 2013). While Exemption 7(F) “may be invoked to protect ‘any individual’ reasonably at risk of harm,” the agency must focus its deletions “narrowly.” Long v. U.S. Dep't of Justice, 450 F. Supp. 2d 42, 80 order amended on reconsideration, 457 F. Supp. 2d 30 (D.D.C. 2006) amended, 479 F. Supp. 2d 23 (D.D.C. 2007). Thus, where the Department of Justice “failed to demonstrate with sufficient specificity that releasing [extensive] information reasonably could be expected to endanger the life or physical safety of any individual,” the agency was not permitted to assert Exemption 7(F). Id. The Court noted of the DOJ, “[I]t offers little more than conclusory assertions that disclosure will increase
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the chances that third parties will be harmed in some way. Such unsupported speculation cannot serve as a justification for withholding information under Exemption 7(F).” Id.
Generally, this court has defined Exemption 7(F) as the “exemption [that] affords broad protection to the identities of individuals mentioned in law enforcement files ..., including any individual reasonably at risk of harm.” Brestle v. Lappin, No. 11-1771, 2013 WL 3107486 (D.D.C. June 20, 2013), (citing Quinto v. DOJ, 711 F.Supp.2d 1, 8 (D.D.C. 2010)). Thus, in Brestle, Quinto, and Boehm, 7(F) was properly asserted where releasing the records would reveal the identity of police informants, who might then be at risk of retaliation by either the plaintiff or some member of the public. Brestle, No.11-1771, at *8; Quinto, 711 F.Supp.2d at 8; Boehm, No. 09-2173, at *22. The connection between individuals named in law enforcement records, their participation in informant activities, and a risk of retaliation if their names were revealed all form a “nexus between disclosure and possible harm,” meriting “narrow deletions to avert the possibility of such harm.” Boehm, No. 09-2173, at *22. DHS cannot form that nexus here.
The “individuals” that DHS refers to in its Motion for Summary Judgment are “individuals near unexploded bombs.” Def.’s Mot. Summ. J., Dkt. 10, at 15. This identification of “individuals” is insufficient. According to DHS, there are no identified individuals “mentioned in law enforcement files” whom the agency seeks to protect by invoking Exemption 7(F). As a result, DHS cannot establish the “nexus” required between disclosure of the individuals mentioned in their records and a risk of harm to those individuals. The “nexus” test requires that the agency link the disclosure of the “individual’s” identity to a risk of harm. DHS cannot make that link, since the agency has identified no individuals whose identities it seeks to protect under Exemption 7(F).
DHS cites Amuso for the proposition that “While courts generally have applied
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Exemption 7(F) to protect law enforcement personnel or other specified third parties, by its terms, the exemption is not so limited; it may be invoked to protect ‘any individual’ reasonably at risk of harm.” Amuso v. DOJ, 600 F. Supp. 2d 78, 101 (D.D.C. 2009). However, Exemption 7(F) must apply to individuals who can be identified with some degree of specificity. In ACLU v. Dep’t of Defense, 543 F. 3d 59 (2d. Cir. 2008), the court noted that “the phrase ‘any individual’ in exemption 7(F) may be flexible, but it is not vacuous.” Id. at 67. The court continued:
[I]t is true that the statute does not read ‘any named individual,’ and we thus understand it to include individuals identified in some way other than by name – such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group. This does not, however, mean that the individual contemplated by exemption 7(F) need not be identified at all, or may be identified as a member of a vast population. Id. at 67-8. The Second Circuit explained that “by requiring a showing of danger to an individual, Congress provided a constraint limiting exemption 7(F) to its intended scope – the protection of individuals subject to a non-speculative risk of harm incident to a law enforcement investigation.” ACLU, 543 F. 3d. at 80. Contrary to DHS’s analysis, Amuso does not permit an agency to forgo the “nexus” test and simply identify a possible risk without also identifying the individual whom disclosure would put at risk. The agency need not identify these individuals by name, but it must nevertheless show that there are certain individuals in need of 7(F) protection. Id. All of DHS’s “individuals” are hypothetical; there are no names or identifying characteristics about DHS’s “individuals” that would put them in any danger if that information were released. In fact, the Second Circuit has explicitly noted that the “individual” at issue may not be “a member of a vast population.” Id. at 68. A statute written to protect individuals from risk of harm if their law enforcement activity were exposed cannot also support an interpretation that prevents an agency
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from disclosing documents that do not name or even contemplate any individuals. DHS has misunderstood the function of the 7(F) exemption, and cannot withhold SOP 303 under this provision.
B. DHS Improperly Relies on the Holding in Living Rivers DHS attempts to avoid the fact that it cannot identify any “individual” for the purpose of the nexus test by relying on an analogy to the Living Rivers case in the Utah District Court. However, the agency mischaracterizes the holding of the Living Rivers decision and rests its argument on a faulty analogy. In Living Rivers, the court held that the Bureau of Reclamation’s properly withheld maps that described the effects of inundation on “the downstream areas that would be flooded by a breach of Hoover Dam or Glen Canyon Dam.” Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313, 1321 (D. Utah 2003). Since terrorists could use the geographical data provided by the maps to plan attacks on downstream areas, the court held that release of the maps could jeopardize the safety of the downstream population. Id. at 1322. DHS analogizes the American public to the downstream population in Living Rivers, asserting that “[r]eleasing information regarding this protocol would enable ‘bad actors’ to blunt its usefulness . . . Neutering this protocol could reasonably be expected to endanger the physical safety of those near a bomb by increasing the chances that the process will fail and the bomb will explode.” Def.’s Mot. Summ. J., Dkt. 10, at 15. This analogy fails, however, since the population at risk in Living Rivers’ was a specific, identifiable group, and the population that DHS seeks to protect in this case is some hypothetical group of the public. Living Rivers differs from most successful 7(F) withholdings in that the “individuals” protected by the withholding were not at risk from a specific existing threat. Id. at 1321. The “terrorists” contemplated in Living Rivers were hypothetical. However, the population at risk was specific and identifiable. Unlike the
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instant case, the government in Living Rivers identified the specific region whose inhabitants would be affected by a terrorist attack on the dams. In this case, not only is the activity hypothetical, but so too are the “individuals” -- the affected population could be any part of the American public – essentially, the “identified” population is the entire United States. III. DHS Has Failed to Segregate and Release Non-Exempt Portions of Records
The FOIA requires the government to disclose any “reasonably segregable portion of a record.” 5 U.S.C. § 552(b); see Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“If a document contains exempt information, the agency must still release ‘any reasonably segregable portion’ after deletion of the nondisclosable portions.”) (citation omitted). “The ‘segregability’ requirement applies to all documents and all exemptions in the FOIA.” Ctr. for Auto Safety v. Envtl. Prot. Agency, 731 F.2d 16, 21 (D.C. Cir. 1984). As with all parts of FOIA litigation, the burden is on the government to “provide a detailed justification for its nonsegregability.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (internal quotation marks omitted). This includes “a statement of [the government’s] reasons,” and a “descri[ption of] what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document.” Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Simply claiming that a segregability review has been conducted is insufficient. Oglesby, 79 F.3d at 1180. Finally, district courts have an “affirmative duty to consider the segregability issue sua sponte.” Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).
Here, DHS failed to perform an adequate segregability analysis. DHS released a copy of SOP 303 to EPIC that was almost entirely redacted, stating that “[n]o other segments of the document could be released without compromising the interests protected by the exemptions
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invoked by DHS.” Def.’s Mot. Summ. J., Dkt. 10, at 15 (citing Holzer Decl. ¶ 22). But this statement is a conclusion, not an explanation. “[U]nless the segregability provision of the FOIA is to be nothing more than a precatory precept, agencies must be required to provide the reasons behind their conclusions in order that they may be challenged by FOIA plaintiffs and reviewed by the courts.” Mead Data Cent., Inc., 566 F.2d at 261 (emphasis added). DHS has provided nothing more than “empty invocation[s] of the segregability standard” that the Court should reject. Judicial Watch, Inc. v. Dep’t of Homeland Sec., No. 11-00604, 2012 WL 251914, at *12 (D.D.C. Jan. 27, 2012).
Although EPIC does not bear the burden of finding segregable material, at the very least, the predetermined shutdown questions contained within SOP 303 should be segregated and released. This portion of the SOP consists of a “pre-determined series of questions that determines if a shutdown is necessary . . . .” Holzer Decl., Dkt. 10-2, ¶ 21. Even accepting DHS’s arguments regarding Exemptions 7(E) and 7(F), the questions are plainly not law enforcement techniques. Under the definition proffered by the agency, a “technique” is “a particular way of doing or of going about the accomplishment of something.” Def.’s Mot. Summ. J., Dkt. 10, at 12; see also Allard K. Lowenstein Int'l Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 678, 680-82 (2d Cir. 2010) (referring to the same definition of “technique”). The shutdown questions, however, are not a means of accomplishing a wireless communications shutdown; they are the means of determining whether to employ a shutdown in the first place. In other words, the shutdown questions are matters of general policy that precede the use of any specific shutdown technique.
Furthermore, release of the predetermined shutdown questions would cause no harm to law enforcement interests. Even if a technique or procedure was both compiled for law
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enforcement purposes and used for investigation or prosecution, the government must still demonstrate that harm would result from its disclosure. In the D.C. Circuit, this harm typically occurs where disclosure would allow bad actors to evade, defeat, or otherwise circumvent the techniques, thereby reducing their effectiveness. See Blackwell v. F.B.I., 646 F.3d 37 (D.C. Cir. 2011) (holding that techniques for computer forensic examination data collection were exempt because disclosure would reduce their effectiveness by “exposing computer forensic vulnerabilities” and “enable[ing] criminals to employ countermeasures to avoid detection” (internal quotation marks omitted)); James v. U.S. Customs and Border Prot., 549 F. Supp. 2d 1, 10 (D.D.C. 2008) (withholding the specific search techniques used on requester because disclosure would “assist in subverting the effectiveness of a particular investigative technique . . . and could enable smugglers of contraband to employ measures to neutralize those techniques” (internal quotation marks omitted)); Hidalgo v. Fed. Bureau of Investigation, 541 F. Supp. 2d 250, 254 (D.D.C. 2008) (explaining that Exemption 7(E) only allows “information about law enforcement techniques to be withheld when publication would allow perpetrators to avoid them . . .”).
Here, bad actors would not be able to use the predetermined shutdown questions alone to defeat the shutdown of wireless networks because they would still lack necessary information contained in the rest of SOP 303. In many cases, disclosure is permitted where interference with or circumvention of a technique would require additional, undisclosed information. See, e.g., Island Film, S.A. v. Dep't of the Treasury, 869 F. Supp. 2d 123, 138 (D.D.C. 2012) (rejecting withholding of database printouts because “the documents themselves do not describe OFAC's procedure for accessing certain databases in the course of its investigations”); Families for Freedom v. U.S. Customs & Border Prot., 797 F. Supp. 2d 375, 391 (S.D.N.Y. 2011) (disclosing
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information about a specific border control station because it did not contain “arrest statistics for each station within the Buffalo sector, which could theoretically aid circumvention of the law by publicizing the relative activity or success of Border Patrol agents in effecting apprehensions at each station”); Pub. Employees for Envtl. Responsibility (Peer), Rocky Mountain Chapter v. U.S. E.P.A., 978 F. Supp. 955, 963 (D. Colo. 1997) (disclosing material in investigative reports because it “discusses coding of confidential sources but does so without alerting the reader how to decipher the code”). SOP 303 contains multiple parts, including (1) the predetermined series of questions that determine if a shutdown is necessary, (2) authentication methods, and (3) the step-by-step shutdown process itself. See Holzer Decl. ¶ 25. Releasing the predetermined shutdown questions would disclose only one part of the SOP, but effectively circumventing a shutdown would require information about the entire procedure. In fact, the predetermined shutdown questions are akin to broad policy regarding the appropriate circumstances for wireless shutdown that is too general to enable interference with any specific network deactivation. Accordingly, they should be segregated and released.
CONCLUSION For the foregoing reasons, the Court should deny the government’s motion for summary judgment and grant Plaintiffs’ cross-motion for summary judgment. At a minimum, the Court should order DHS to conduct an adequate segregability review of SOP 303.

Dated: July 26, 2013

Respectfully submitted, MARC ROTENBERG President and Executive Director /s/ Ginger P. McCall_____ GINGER P. MCCALL (DC Bar No. 1001104)
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Case 1:13-cv-00260-JEB Document 12 Filed 07/26/13 Page 18 of 18 DAVID JACOBS JULIA HORWITZ Electronic Privacy Information Center 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 Telephone: (202) 483-1140 Fax: (202) 483-1248 mccall@epic.org Attorneys for Plaintiff
 Admitted to practice in New York, admission pending in D.C.  Admitted to practice in Maryland, admission pending in D.C.
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Case 1:13-cv-00260-JEB Document 12-3 Filed 07/26/13 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY

)

INFORMATION CENTER,

)

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY

)

)

Defendant

)

______________________ ___________________ )

Case No. 1:13-CV-260 (JEB)

PLAINTIFF’S STATEMENT OF DISPUTED MATERIAL FACTS AS TO WHICH THERE IS A GENUINE ISSUE
Pursuant to Local Civil Rule 7(h), Plaintiff Electronic Privacy Information Center (“EPIC”) submits the following statement of disputed and undisputed facts in opposition to Defendant Department of Homeland Security’s motion for summary judgment and in support of Plaintiff’s cross-motion for summary judgment. This statement identifies the portions of Defendant’s Statement of Material Facts Not In Dispute, Dkt. 10 at 19, as to which Plaintiff contends there exists a genuine issue.
1. Plaintiff agrees that there is no genuine issue as to the facts set forth in paragraphs 1, 3-20, 22, and 24 of Defendant’s Statement.
2. Plaintiff contends that there exist genuine issues of material fact as to the matters set forth in paragraphs 2, 21, 23, and 25 of Defendant’s Statement, as explained below.
3. Paragraph 2 of Defendant’s Statement asserts that “Standard Operating Procedure (SOP) 303 is a document that details a process for the ‘deactivation of wireless networks’ primarily to ‘deter the triggering of radio-activated improvised explosive devices.’” Defs.’ Statement ¶ 3. Plaintiff does not dispute that SOP 303 includes details of a process to “deactivate wireless networks,” but Plaintiff asserts that there is a genuine issue as to whether details of the deactivation process are all that is included in SOP 303.

Case 1:13-cv-00260-JEB Document 12-3 Filed 07/26/13 Page 2 of 2
4. In support of this assertion, Plaintiff has attached pages from the President’s National Security Telecommunications Advisory Committee’s 2006-2007 Report on “Termination of Cellular Networks During Emergency Situations.” Exhibit 1. This report indicates [thing].
5. Paragraph 21of Defendant’s Statement asserts that DHS determined that “SOP 303 is a record compiled for law enforcement purposes and the release of portions of SOP 303 would disclose the techniques and procedures for law enforcement investigations,” and that DHS invokes Exemption 7(E) to justify this withholding Defs.’ Statement at ¶ 21. Plaintiff disputes the adequacy of the explanation for these conclusions.
6. Paragraph 23 of Defendant’s Statement asserts that DHS determined that “SOP 303 is a record compiled for law enforcement purposes and the release of portions of SOP 303 could reasonably be expected to endanger the life or safety of an individual,” and that DHS invokes Exemption 7(F) to justify this withholding. Defs.’ Statement at ¶ 23-4. Plaintiff disputes these conclusions because the agency has failed to identify an identifiable individual or individuals whose safety would be threatened by disclosure, and because the threat invoked by DHS is hypothetical and only tangentially related to the safety of the unidentified individuals.
7. Paragraph 25 of Defendant’s Statement asserts, “The agency determined that portions of SOP 303 are non-exempt, and it is releasing those portions to EPIC.” Defs.’ Statement at ¶ 23. Plaintiff does not dispute that those portions of SOP 303 are non-exempt, but Plaintiff asserts that there is a genuine issue as to whether Defendant has conducted a sufficient segregability analysis to identify all non-exempt portions of SOP 303.
	
  

Case 1:13-cv-00260-JEB Document 12-4 Filed 07/26/13 Page 1 of 2

The President’s National Security Telecommunications Advisory Committee

2006-2007 NSTAC Issue Review u Previously Addressed Issues

Termination of Cellular Networks During Emergency Situations

To facilitate more coordinated action, the NSTAC recommended that the President direct his departments and agencies to:

Investigation Group / Period of Activity
Cellular Service Shutdown Ad Hoc Working Group August 2005 – January 2006
Issue Background As a direct result of the bombings that took place in the London transportation system in July 2005, U.S. authorities initiated the shut down of cellular network services in the Lincoln, Holland, Queens, and Brooklyn Battery Tunnels. The Federal Government based this precautionary measure on the suspicion that similar attacks might also be perpetrated in the tunnels leading to and from New York City. Though the decision was rooted in vital security concerns, the resulting situation, undertaken without prior notice to wireless carriers or the public, created disorder for both Government and the private sector at a time when use of the communications infrastructure was most needed. Shortly following these activities, the National Coordinating Center (NCC) hosted a teleconference to discuss the need to develop a process for determining if and when cellular shutdown activities should be undertaken in the future in light of the serious impact these efforts could have had, not only on access by the public to emergency communications services during these situations, but also on public trust in the communications infrastructure in general.
History of NSTAC Actions and Recommendations These actions highlighted, within the President’s National Security Telecommunications Advisory Committee (NSTAC) community, the need for a process to ensure that future similar decisions meet the Nation’s security goals and ensure the protection of critical infrastructures. Consequently, on August 18, 2005, the NSTAC established a Principal level task force to formulate, on an expedited basis, recommendations to effect efficient coordinated action between industry and Government in times of national emergency.

u Work to implement a simple process, building upon existing processes, with the Department of Homeland Security (DHS) and National Communications System (NCS) coordination enabling the Government to speak with one voice, provide decision makers with relevant information, and provide wireless carriers with Governmentauthenticated decisions for implementation; and
u Achieve rapid implementation through the Homeland Security Advisor of each State, in conjunction with the NCS and the Office of State and Local Government Coordination, DHS.
The group concluded its activities upon NSTAC approval of the Letter and recommendations in January 2006.
Actions Resulting from NSTAC Recommendations In support of the recommendations, the NCS approved Standard Operating Procedure (SOP) 303, “Emergency Wireless Protocols,” on March 9, 2006, codifying a shutdown and restoration process for use by commercial and private wireless networks during national crises. Under the process, the NCC will function as the focal point for coordinating any actions leading up to and following the termination of private wireless network connections, both within a localized area, such as a tunnel or bridge, and within an entire metropolitan area. The decision to shutdown service will be made by State Homeland Security Advisors, their designees, or representatives of the DHS Homeland Security Operations Center. Once the request has been made by these entities, the NCC will operate as an authenticating body, notifying the carriers in the affected area of the decision. The NCC will also ask the requestor a series of questions to determine if the shutdown is a necessary action. After making the determination that the shutdown is no longer required, the NCC will initiate a similar process to reestablish service. The NCS continues to work with the Office of State and

139

Case 1:13-cv-00260-JEB Document 12-4 Filed 07/26/13 Page 2 of 2

Previously Addressed Issues t 2006-2007 NSTAC Issue Review

The President’s National Security Telecommunications Advisory Committee

Local Government Coordination at DHS, and the Homeland Security Advisor for each State to initiate the rapid implementation of these procedures.
Reports Issued
NSTAC Cellular Shutdown Letter to the President, January 2006

140

Case 1:13-cv-00260-JEB Document 12-5 Filed 07/26/13 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ELECTRONIC PRIVACY INFORMATION

)

CENTER

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF

)

HOMELAND SECURITY

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 13-00260 (JEB)

[PROPOSED] ORDER

Upon consideration of Defendant’s Motion for Summary Judgment, Plaintiffs’ Cross-

Motion for Summary Judgment, and related filings, it is hereby:

ORDERED that Defendants’ Motion for Summary Judgment is DENIED;

ORDERED that Plaintiffs’ Cross-Motion for Summary Judgment is GRANTED;

ORDERED that Defendant shall produce all records responsive to Plaintiff’s Freedom of

Information Act request

Dated: ___________________.

____________________________________ JAMES E. BOASBERG United States District Judge

 </s> Case 1:13-cv-00260-JEB Document 18 Filed 11/12/13 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v.
DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Civil Action No. 13-260 (JEB)

ORDER

As set forth in the accompanying Memorandum Opinion, the Court ORDERS that:

1. Defendant’s Motion for Summary Judgment is DENIED;

2. Plaintiff’s Motion for Summary Judgment is GRANTED;

3. This Judgment is STAYED for 30 days; and

4. Should DHS notice an appeal by December 12, 2013, the stay shall remain in effect

until the Court of Appeals rules on such appeal.

IT IS SO ORDERED.

Date: November 12, 2013

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

1

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v.
DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Civil Action No. 13-260 (JEB)

MEMORANDUM OPINION This case concerns efforts of the Electronic Privacy Information Center under the Freedom of Information Act to obtain documents related to the Department of Homeland Security’s Standard Operating Procedure 303. This protocol governs the shutdown of wireless networks in emergencies to, inter alia, prevent the remote detonation of explosive devices. After DHS withheld the lion’s share of the one responsive document it found, EPIC brought this action. DHS now moves for summary judgment, arguing that its search for documents was adequate, that it properly withheld the bulk of SOP 303 under applicable FOIA exemptions, and that no other non-exempt parts of the document could be released. EPIC cross-moves for summary judgment, contending that the two exemptions DHS relied on to withhold most of the document, 7(E) and 7(F), do not apply here. As the Court believes EPIC has the better of this argument, it will dispose of the Motions accordingly. I. Background Standard Operating Procedure 303 is an “Emergency Wireless Protocol[] . . . codifying a shutdown and restoration process for use by commercial and private wireless networks during
1

national crises.” National Security Telecommunications Advisory Committee, NSTAC Issue Review 2006-07 at 139 (2007), http://www.dhs.gov/sites/default/files/publications/20062007%20NSTAC%20Issue%20Review_0.pdf. The wireless networks could be shut down in certain emergency situations to, inter alia, “deter the triggering of radio-activated improvised explosive devices.” See Def. Mot., Exh. 2 (Declaration of James V.M.L. Holzer), ¶ 25.
On July 10, 2012, EPIC submitted a FOIA request to DHS seeking: “(1) the full text of Standard Operating Procedure 303 (SOP 303), which describes a shutdown and restoration process for use by ‘commercial and private wireless networks’ in the event of a crisis; (2) the full text of the pre-determined ‘series of questions’ that determines if a shutdown is necessary; and (3) any executing protocols or guidelines related to the implementation of SOP 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.” Id., ¶ 9. DHS responded to EPIC on August 21, 2012, saying that it “had conducted comprehensive searches for records that would be responsive to the request[, but] . . . that [DHS was] unable to locate or identify any responsive records.” Id., ¶ 16. EPIC administratively appealed on October 2, 2012, and on March 25, 2013, the United States Coast Guard, Office of the Chief Administrative Law Judge – the office that reviews these FOIA appeals – “remanded the matter back to DHS Privacy for further review.” Id., ¶¶ 17-18.
Upon additional inspection, DHS located one responsive record, the very document EPIC had requested: Standard Operating Procedure 303. Id., ¶¶ 19-20. “Included as part of SOP 303 itself are the two other categories of records that EPIC seeks, i.e., the full text of the predetermined series of questions that determines if a shutdown is necessary, and the executing protocols related to the implementation of SOP 303.” Id., ¶ 21. DHS “determined that the SOP
2

is the only responsive document because there are no other documents that contain the full text of the questions or any executing protocols.” Id.
Portions of SOP 303 – “names, direct-dial telephone numbers, and email addresses for state homeland security officials” – were withheld from EPIC under Exemptions 6 and 7(C), which generally permit withholding of personal information. Id., ¶¶ 23-24. The remainder of the document was withheld under Exemptions 7(E) and 7(F), which permit withholding of certain law-enforcement information if it, respectively, would “disclose techniques and procedures for law enforcement investigations or prosecutions” or “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7); Holzer Decl., ¶¶ 25-26.
On February 27, 2013, EPIC filed this lawsuit seeking the release of the withheld portions of SOP 303. Both parties have now cross-moved for summary judgment.
II. Legal Standard Summary judgment may be granted 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 genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own
3

affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis Congress enacted FOIA in order to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). “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.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with
4

published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary and capricious, 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)). “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 Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
In moving for summary judgment, DHS first contends that its search was adequate. EPIC does not contest this point. DHS next maintains that its withholding of personal identifying information under Exemptions 6 and 7(C) was appropriate. EPIC makes no challenge here either. See Opp. at 5 n.1. Instead, it saves its ammunition for DHS’s claim that it properly withheld the bulk of SOP 303 under both Exemption 7(E) and 7(F). Because the Court ultimately finds that the agency’s invocation of these exemptions was not proper, it need not address the last issue EPIC raises – namely, whether DHS performed an appropriate segregability analysis. The Court will begin with a discussion of 7(E) and then move to a consideration of 7(F).
A. Exemption 7(E) Exemption 7 authorizes the Government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement
5

records or information” meets one of six requirements. 5 U.S.C. § 552(b)(7); see Keys v. Dep’t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (“[Exemption 7] exempts such documents from disclosure only to the extent that production of the information might be expected to produce one of six specified harms.”). The fifth subparagraph – 7(E) – permits withholding where production “would disclose techniques and procedures for law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). The agency here must thus satisfy two requirements: First, the record must be compiled for law-enforcement purposes; and second, production must disclose techniques and procedures for law-enforcement investigations.
DHS clearly surpasses the first hurdle. “Steps by law enforcement officers to prevent terrorism surely fulfill ‘law enforcement purposes.’” Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1272 (2011) (Alito, J., concurring). DHS need only make “a colorable claim” of a rational nexus “between the agency’s activity [that created the document] and its law enforcement duties.” Keys, 830 F.2d at 340. DHS created SOP 303 to “establish[] a protocol for verifying that circumstances exist that would justify shutting down wireless networks” “to efficiently and effectively deter the triggering of radio-activated improvised explosive devices.” Holzer Decl., ¶ 25. There is, accordingly, a rational nexus between SOP 303’s protocol for preventing the triggering of radio-activated IEDs and DHS’s law-enforcement purpose of keeping the country safe.
DHS’s trouble comes at the second step, which requires that the disclosure would reveal “techniques and procedures for law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). The key question is whether the agency has sufficiently demonstrated how SOP 303, which articulates protective measures, is a technique or procedure “for law enforcement investigations or prosecutions.” Id.
6

The Court must begin by “presum[ing] that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). Of particular relevance here, Congress amended FOIA in 1986. See PL 99-570, Oct. 27, 1986, 100 Stat 3207. Prior to the 1986 amendments, to merit withholding, Exemption 7 first required “investigatory records compiled for law enforcement purposes,” and subparagraph (E) then required that the records would “disclose investigative techniques and procedures.” See PL 93-502, Nov. 21, 1974, 88 Stat 1561. The 1986 amendments “delet[ed] any requirement [in the first step] that the information be ‘investigatory,’” Tax Analysts, 294 F.3d at 79, and broadened the permissible withholding to “records or information compiled for law enforcement purposes.” See PL 99-570, Oct. 27, 1986, 100 Stat 3207. Congress, however, retained the investigatory requirement in 7(E). See id. (slightly modifying subparagraph (E), but keeping requirement that information be “for law enforcement investigations or prosecutions”). Congress thus specifically and intentionally chose to remove the investigatory requirement from the first step and to leave it in the second step. The Court, therefore, will apply “the usual rule that ‘when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.’” Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th rev. ed. 2000)).
Looking at the amended language, the Court agrees with the Government that Exemption 7’s mention of “law enforcement purposes” may certainly include preventive measures. See Mot. at 9-10. The problem is that 7(E)’s reference to “law enforcement investigations and prosecutions” does not. This distinction finds support in Justice Alito’s concurrence in Milner, a case that dealt with the applicability of Exemption 2. In his opinion, Justice Alito explained that
7

“[t]he ordinary understanding of law enforcement [purposes] includes not just the investigation and prosecution of offenses that have already been committed, but also proactive steps designed to prevent criminal activity and to maintain security.” Milner, 131 S. Ct. at 1272 (Alito, J., concurring). Justice Alito went on to explain how, in context, Exemption 7’s reference to “law enforcement purposes” “involve[s] more than just investigation and prosecution,” which he describes as “narrower activities” confined to Exemption 7’s subparagraphs. See id. at 1273 (“Congress’ decision to use different language to trigger Exemption 7 confirms that the concept of ‘law enforcement purposes’ sweeps in activities beyond [subparagraph (E)’s] investigation and prosecution.”)
If “techniques and procedures for law enforcement investigations or prosecutions” is given its natural meaning, it cannot encompass the protective measures discussed in SOP 303. This term refers only to acts by law enforcement after or during the commission of a crime, not crime-prevention techniques. Reading Exemption 7(E) as such, moreover, is in keeping with FOIA’s “basic policy that disclosure, not secrecy, is the dominant objective of the Act,” Pub. Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008) (internal quotation marks omitted), and the well-settled practice of reading FOIA exemptions narrowly. See Milner, 131 S. Ct. at 1265 (“We have often noted ‘the Act’s goal of broad disclosure’ and insisted that the exemptions be ‘given a narrow compass.’”) (quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)).
In arguing against such an interpretation, DHS relies on a nearly 30-year-old case from this district that upheld the Secret Service’s invocation of Exemption 7(E) to shield “records pertaining to . . . two armored limousines for the President.” U.S. News & World Report v. Dep’t of Treasury, 1986 U.S. Dist. LEXIS 27634, at *1 (D.D.C. March 26, 1986). In that case,
8

the court rejected plaintiff’s argument – similar to the one EPIC makes here – “that the information at issue [] would reveal ‘protective’ not ‘investigative’ techniques and procedures” and concluded that “[i]t is inconceivable . . . that Congress meant to afford these [preventive] activities any less protection from disclosure simply because they do not fit within the traditional notion of investigative law enforcement techniques.” Id. at *6. This case, however, was decided before the 1986 amendments changed the language of the relevant clauses, making it not “inconceivable,” but in fact probable that Congress intended to differentiate between preventive and investigative activities. U.S. News also predates Milner’s insistence on reading the exemptions narrowly. See 131 S. Ct. at 1265; see also Dep’t of Justice v. Landano, 508 U.S. 165, 181 (1993) (noting Court’s “obligation to construe FOIA exemptions narrowly in favor of disclosure”). The Court, therefore, does not believe U.S. News dictates a different result.
The agency’s last gambit is a post hoc attempt in its Reply to classify SOP 303 as an investigative technique. It claims that “[p]reventing explosives from detonating preserves evidence . . . and, thereby, facilitates the investigation into who built and placed the bomb.” See Def’s Reply at 5-6. This is too little, too late. As EPIC notes, “[N]o ordinary speaker of the English language” would describe SOP 303 – “a protocol for verifying that circumstances exist that would justify shutting down wireless networks” “to efficiently and effectively deter the triggering of radio-activated improvised explosive devices,” Holzer Decl., ¶ 25 – as an evidencegathering technique. Pl’s Reply at 3.
The Court will thus read Exemption 7(E) in a manner that harmonizes with FOIA’s purpose of disclosure, the canons of statutory construction, and the Supreme Court’s guidance to read FOIA’s exemptions narrowly.
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B. Exemption 7(F) DHS next argues that SOP 303 was also properly withheld under Exemption 7(F). This exemption authorizes the Government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). As the Court explained in relation to Exemption 7(E), the agency easily clears the “law enforcement purposes” hurdle. See Section III.A, supra. Yet again, though, the second requirement leads to DHS’s undoing. DHS must show that production would “endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F) (emphasis added). The agency argues that SOP 303’s “disclosure could reasonably be expected to endanger the physical safety of individuals near unexploded bombs.” Mot. at 13. DHS’s thinking goes like this: 1) SOP 303 “describes a procedure for shutting down wireless networks to prevent bombings”; 2) “[r]eleasing information regarding this protocol would enable ‘bad actors’ to blunt its usefulness”; and 3) this “could reasonably be expected to endanger the physical safety of those near a bomb by increasing the chances that the process will fail and the bomb will explode.” Id. In other words, the “any individual” test is satisfied because those endangered are any individuals near a bomb. Although this interpretation holds some appeal, the Court must conclude that the agency reads the “any individual” standard too broadly. While DHS is correct that Exemption 7(F) is not limited to protecting law-enforcement personnel from harm, see Amuso v. Dep’t of Justice, 600 F. Supp. 2d 78, 101 (D.D.C. 2009), the agency still must identify the individuals at risk with some degree of specificity. See ACLU v. Dep’t of Defense, 543 F.3d 59, 66-72 (2d Cir. 2008) (“The phrase ‘any individual’ in exemption 7(F) may be flexible, but is not vacuous.”), vacated on other grounds, 558 U.S. 1042 (2009).
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The Second Circuit in ACLU considered a similar question to the one raised here, and its opinion is instructive. The Government there wished to apply the “any individual” standard to prevent the release of photographs “depict[ing] abusive treatment of detainees by United States soldiers in Iraq and Afghanistan” on the ground that “the release of the disputed photographs will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.” Id. at 63. In an extensive examination of the phrase “any individual” – in light of the Supreme Court’s admonition to interpret FOIA exemptions narrowly – the court rejected the Government’s argument “that it could reasonably be expected that out of a population the size of two nations and two international expeditionary forces combined, someone somewhere will be endangered as a result of the release of the Army photos.” Id. at 71. It concluded that “an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual.” Id.
Central to the ACLU court’s holding was its thorough examination of the legislative history of 7(F), which this Court also finds significant. Prior to the 1986 FOIA amendments, Exemption 7(F) protected records, the release of which would “endanger the life or physical safety of law enforcement personnel.” See PL 93-502, Nov. 21, 1974, 88 Stat 1561 (emphasis added). The exemption served to withhold “information which would reveal the identity of undercover agents, State or Federal, working on such matters as narcotics, organized crime, terrorism, or espionage.” Edward A. Levi, Attorney General’s Memorandum on the 1974 Amendments to the Freedom of Information Act, pt. I.B (1975), available at http://www.justice.gov/oip/74agmemo.htm, cited in ACLU, 543 F.3d at 77-78. The exemption did not cover witnesses, interviewees, victims, informants, or families of law-enforcement personnel; as a result, among other impairments, it “harmed the ability of law enforcement
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officers to enlist informants.” Statement of the Chair of the Senate Committee on the Judiciary’s Subcommittee on the Constitution (the subcommittee with jurisdiction over FOIA), 131 Cong. Rec. S263 (daily ed. Jan. 3, 1985), cited in ACLU, 543 F.3d at 78.
To remedy this omission, the Government asked for an amendment to “modif[y] slightly – not revise[] wholesale” – the scope of 7(F). Statement of Carol E. Dinkins, Deputy Attorney General, 131 Cong. Rec. S263 (daily ed. Jan. 3, 1985), cited in ACLU, 543 F.3d at 79. As the Government stated in support of the amendment:
The current language in Exemption 7(F) exempts records only if their disclosure would endanger the life of a law enforcement officer. However, the exemption does not give similar protection to the life of any other person. [The proposed amendment] expands Exemption 7(F) to include such persons as witnesses, potential witnesses, and family members whose personal safety is of central importance to the law enforcement process. Id., cited in ACLU, 543 F.3d at 78. Congress complied, passing “only modest changes to the FOIA . . . , [a]nd slight[ly] expan[ding] . . . exemption[] . . . (7)(F).” Statement of the Chair of the House Committee on Government Operations, Subcommittee on Government Information, Justice, and Agriculture (the subcommittee with jurisdiction over FOIA), 132 Cong. Rec. H9455 (daily ed. Oct. 8, 1986), cited in ACLU, 543 F.3d at 79. Congress ultimately settled on the broader term of “any individual,” as opposed to, for example, “any individual connected to or assisting law enforcement.” The Court, therefore, would be overly restrictive if it defined “any individual” in the latter, cabined manner. Yet, bearing in mind the modest expansion intended and the prescription that exemptions must be read narrowly, the Court must require some specificity and some ability to identify the individuals endangered.
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Against this backdrop, the Government here nonetheless seeks a broader interpretation of “any individual” than was rejected in ACLU. The individuals that DHS claims satisfy the standard are anyone “within the blast radius of a remotely detonated bomb.” See Def’s Mot. at 12-13; Def’s Reply at 11. As EPIC notes, “These hypothetical bombs” – like the hypothetical danger to troops and civilians in ACLU – “could materialize at any time, in any place, and affect anyone in the United States.” Pl’s Reply at 9. These individuals, therefore, are “identified only as a member of a vast population.” ACLU, 543 F.3d at 68. In fact, the population is vaster here because it encompasses all inhabitants of the United States, while in ACLU it only covered people in Iraq and Afghanistan. Indeed, if the Government’s interpretation were to hold, there is no limiting principle to prevent “any individual” from expanding beyond the roughly 300 million inhabitants of the United States, as the Government proposes here, to the seven billion inhabitants of the earth in other cases. This expansive interpretation of “any individual” is far broader than what the Government had in mind when it requested a “slight[]” enlargement of 7(F) in 1985, and far more than Congress approved in its “slight expansion of exemption[] . . . (7)(F)” in 1986. See 131 Cong. Rec. at S263; 132 Cong. Rec. at H9455.
The primary case DHS relies on for the proposition that anyone near unexploded bombs is a specific-enough group, Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003), is easily distinguishable. In that case, the court upheld the Government’s invocation of Exemption 7(F) to withhold inundation maps that showed downstream communities that would be at risk in the event of dam failure. Id. at 1315, 1321-22. The danger was that terrorists could use the maps to better plan prospective attacks. Id. at 1321. There is a critical difference, however, between the populations in danger in that case and this one. In Living Rivers, the Government contended that “disclosure of the inundation maps ‘could
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reasonably place at risk the life or physical safety of those individuals who occupy the downstream areas that would be flooded by a breach of Hoover Dam or Glen Canyon Dam.’” Id. (emphasis added) (internal citation omitted). Here, the individuals at risk include anyone near any unexploded bomb, which could include anyone anywhere in the country. See Mot. at 12-13, Def’s Reply at 11. As the Living Rivers population was clearly specified and limited, the case, even were it binding, does not affect the Court’s decision.
The additional cases DHS cites in its Reply for the proposition that individuals need not be specifically identified all involve far narrower groups with readily identifiable members than those at risk here. See Zander v. Dep’t of Justice, 885 F. Supp. 2d 1, 7 (D.D.C. 2012) (upholding 7(F) withholding where Government identified class of people at risk as police officers working in prisons while forcibly removing prisoners from their cells); Pub. Employees for Envtl. Responsibility v. U.S. Section Int’l Boundary & Water Comm'n, 839 F. Supp. 2d 304, 327-28 (D.D.C. 2012) (upholding 7(F) withholding of inundation maps for similar reasons as those in Living Rivers); Peter S. Herrick’s Customs & Int’l Trade Newsletter v. U.S. Customs & Border Prot., No. 04-00377, 2006 WL 1826185, at *8-9 (D.D.C. June 30, 2006) (upholding 7(F) withholding relating to, inter alia, customs officials’ seized contraband because information’s release would “put[] Customs’ officials at risk from individuals who would seek to acquire such items”).
Reading 7(F) to encompass possible harm to anyone anywhere in the United States within the blast radius of a hypothetical unexploded bomb also flies in the face of repeated Supreme Court direction to read FOIA exemptions narrowly. See Milner, 131 S. Ct. at 1265 (“We have often noted ‘the Act’s goal of broad disclosure’ and insisted that the exemptions be ‘given a narrow compass.’”) (quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151
14

(1989)); Landano, 508 U.S. at 181 (noting Court’s “obligation to construe FOIA exemptions narrowly in favor of disclosure”); Rose, 425 U.S. at 361 (noting “basic policy that disclosure, not secrecy, is the dominant objective of the Act”). Exemption 7(F), therefore, cannot be read as expansively as the Government proposes, and thus cannot justify withholding SOP 303. The Court does not dispute that it will be difficult in some cases to decide whether endangered individuals have been sufficiently identified, but such hardship does not exist here.
* * * In reaching its conclusion, the Court is not unaware of the potential adverse use to which this information could be put. Its ruling, furthermore, is no judgment on whether it is in the national interest for SOP 303 to be disclosed. If, in fact, the Government believes release will cause significant harm, it has other options to pursue. As the Supreme Court explained in Milner, “If these or other exemptions do not cover records whose release would threaten the Nation’s vital interests, the Government may of course seek relief from Congress. . . . All we hold today is that Congress has not enacted the FOIA exemption the Government desires. We leave to Congress, as is appropriate, the question whether it should do so.” Milner, 131 S. Ct. at 1271. Indeed, in issuing guidance on FOIA exemptions in a post-Milner world, the Department of Justice’s Office of Information Policy concluded that “it seems inevitable that there will be some sensitive records that will not satisfy the standards of any of the Exemptions.” OIP Guidance, Exemption 2 After the Supreme Court’s Ruling in Milner v. Department of the Navy 15 available at http://www.justice.gov/oip/foiapost/milner-navy.pdf. Standard Operating Procedure 303 is such a record.
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IV. Conclusion For the foregoing reasons, the Court will issue a contemporaneous Order granting
judgment in Plaintiff’s favor and ordering DHS to turn over SOP 303 – with redactions related only to Exemptions 6 and 7(C) – to Plaintiff within 30 days. Mindful of the national-security implications involved, and appreciating that disclosure of SOP 303 would effectively moot any appeal, this Opinion and accompanying Order will be stayed for 30 days in order to allow for either appeal, should the Government wish to file one, or another type of cure – e.g., classification of the document to exempt it from disclosure under Exemption 1 or legislation exempting it from FOIA under Exemption 3. If DHS notices an appeal by December 12, 2013, the stay shall remain in effect until the Court of Appeals rules on such appeal.

Date: November 12, 2013

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 </s> Case 1:13-cv-00260-JEB Document 23 Filed 06/01/15 Page 1 of 1

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2014

Decided February 10, 2015

No. 14-5013

ELECTRONIC PRIVACY INFORMATION CENTER, APPELLEE

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, APPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-00260)

Adam C. Jed, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, U.S. Attorney, and Sharon Swingle, Attorney.
Marc Rotenberg argued the cause and filed the brief for appellee.
Before: ROGERS, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Pursuant to the Freedom of

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Information Act (“FOIA”), 5 U.S.C. § 552, the Electronic Privacy Information Center (“EPIC”) requested release by the Department of Homeland Security of Standard Operating Procedure 303 (“SOP 303”), which the Department describes as a protocol for shutting down wireless networks during critical emergencies. When the Department released only a heavily redacted version, EPIC successfully sued to compel disclosure. See Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 999 F. Supp. 2d 24 (D.D.C. 2013) (“EPIC”). The Department appeals, invoking FOIA Exemption 7(F) on the ground that production of SOP 303 could reasonably be expected to endanger many individuals’ lives or physical safety. Upon de novo review, we hold that the plain text of Exemption 7(F) protects law enforcement records the disclosure of which “could reasonably be expected to endanger the life or physical safety of any individual,” 5 U.S.C. § 552(b)(7)(F), during a critical emergency, without requiring the withholding agency to specifically identify the individuals who would be endangered, and that much if not all of SOP 303 is exempt from disclosure. Accordingly, we reverse the grant of summary judgment to EPIC, and we remand the case for the district court to determine whether any reasonably segregable portions of SOP 303 can be disclosed.
I.
SOP 303 is an “Emergency Wireless Protocol” that codifies a “unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies such as the threat of radio-activated improvised explosive devices.” Decl. James Holzer, I, Senior Dir. FOIA Opns., Privacy Off., Dep’t Homeland Sec., ¶ 20, June 28, 2013; see Nat’l Sec. Telecomm. Advisory Comm., Termination of Cellular Networks During Emergency Situations, NSTAC Issue Review 2006-07,

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at 139 (2007) (“NSTAC Issue Review”).1 After the 2005 bombings of the transportation system in London, England, in which cellular telephones were used to detonate explosives remotely, the President’s National Security Telecommunications Advisory Committee identified the need for a “single governmental process to coordinate determinations of if and when cellular shutdown activities should be undertaken in light of the serious impact on access by the public to emergency communications services during these situations and the need to preserve the public trust in the integrity of the communications infrastructure.” Holzer Decl. ¶ 20; see also NSTAC Issue Review, at 139. The National Coordinating Center for Communications (“NCC”, formerly known as the NCC for Telecommunications), part of the Department’s National Cybersecurity and Communications Integration Center, developed SOP 303, under which the NCC “function[s] as the focal point for coordinating any actions leading up to and following the termination of private wireless network connections.” NSTAC Issue Review, at 139. State Homeland Security Advisors, or their designees, or representatives of the Department’s Homeland Security Operations Center make the decision to suspend cellular service. Id. Once one of these entities requests a shutdown, the NCC “operate[s] as an authenticating body, notifying the carriers in the affected area of the decision.” Id. The NCC also “ask[s] the requestor a series of questions to determine if the shutdown is a necessary action.” Id. “After making the determination that the shutdown is no longer required, the NCC . . . initiate[s] a similar process to reestablish service.” Id.
On July 10, 2012, EPIC submitted a FOIA request to the

1

Available

at

http://www.dhs.gov/sites/default/files/publications/2006-2007%20

NSTAC%20Issue%20Review_0.pdf.

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Department seeking the full text of SOP 303, the series of questions used to determine whether a shutdown is necessary, and any related protocols or guidelines. The Department initially responded that it had conducted a comprehensive search, but was unable to locate or identify any responsive records. Following an administrative appeal, however, the Department conducted another search and located one responsive record: SOP 303. See Nat’l Coordinating Ctr. for Telecomm. Standard Operating Procedure 303 (Sept. 25, 2009) (“SOP 303”). The SOP included the full text of the predetermined series of questions that determines if a shutdown is necessary, and the executing protocols related to the implementation of SOP 303. Holzer Decl. ¶ 21.
Pursuant to FOIA Exemptions 6 and 7(C), which protect certain personal information, see 5 U.S.C. §§ 552(b)(6), (b)(7)(C), the Department withheld from EPIC the names, telephone numbers, and email addresses for state homeland security officials contained in SOP 303. Aside from a sentence explaining that SOP 303 “provides detailed procedures for the [NCC] to coordinate requests for the disruption of cellular service,” certain subsection headings, and the title of Appendix E (“External Agency Cellular Service Disruption Implementation Instructions”), essentially all of SOP 303 was withheld pursuant to FOIA Exemptions 7(F) and 7(E), which permit non-disclosure of certain law-enforcement information that, respectively, “could reasonably be expected to endanger the life or physical safety of any individual,” 5 U.S.C. § 552(b)(7)(F), or “would disclose techniques and procedures for law enforcement investigations or prosecutions,” id. § 552(b)(7)(E).
On February 27, 2013, EPIC filed suit seeking the release of SOP 303 in its entirety. See 5 U.S.C. § 552(a)(4)(B). The parties filed cross motions for summary judgment. In support of

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summary judgment, the Department submitted the Holzer declaration asserting that SOP 303 was exempt from disclosure under FOIA Exemption 7(F) because “[m]aking SOP 303 public would, e.g., enable bad actors to insert themselves into the process of shutting down or reactivating wireless networks by appropriating verification methods and then impersonating officials designated for involvement in the verification process.” Holzer Decl. ¶ 26. Such bad actors would, Holzer stated, then “be [able] to disable the protocol [and] freely use wireless networks to activate . . . improvised explosive devices,” so “there is a reasonable expectation that disclosure could reasonably endanger individuals’ lives or physical safety.” Id. Exemption 7(E) also applied because, according to Holzer, SOP 303 “contains a homeland security procedure primarily intended to efficiently and effectively deter the triggering of radio-activated improvised explosive devices,” and during such critical emergencies “orderly deactivation of wireless networks may be the best option for preventing and/or mitigating explosions that would endanger life and property.” Id. ¶ 25. Holzer repeated the “bad actor” explanation for non-disclosure, adding that SOP 303’s production could “circumvent or interfere with a law enforcement strategy designed to prevent activation of improvised explosive devices by providing information about when shutdown procedures are used and how a shutdown is executed.” Id.
The district court granted summary judgment for EPIC. EPIC, 999 F. Supp. 2d at 27, 29-34. Although concluding the Department had satisfied Exemptions 7’s threshold requirement, by showing that SOP 303 was compiled for law enforcement purposes, id. at 29-30, the district court ruled that Exemption 7(F) was inapplicable because the Department had failed to “identify the individuals [endangered by disclosure of SOP 303] with some degree of specificity.” Id. at 32. The district court acknowledged that an earlier version of Exemption 7(F) only

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protected records from disclosure if their production would endanger the life or physical safety of law enforcement personnel in particular, see Pub. L. No. 93-502, sec. 2(b), § 552(b)(7), 88 Stat. 1561, 1563-64 (1974), and that in 1986 Congress had amended the exemption to allow non-disclosure where production would endanger other persons, too, but looking to the legislative history concluded Congress intended only a modest expansion of the exemption. EPIC, 999 F. Supp. 2d at 32-34; see Pub. L. No. 99-570, sec. 1802(a), § 552(b)(7), 100 Stat. 3207, 3255-56 (1986). The district court also ruled that Exemption 7(E) did not apply because SOP 303 was not a technique or procedure for law enforcement investigations or prosecutions. EPIC, 999 F. Supp. 2d at 30-31.
The Department appeals, and our review of the grant of summary judgment is de novo, viewing the evidence in the light most favorable to the non-moving party. Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 200 (D.C. Cir. 2014) (“PEER”).
II.
The FOIA “mandates that an agency disclose records on request, unless they fall within one of nine exemptions.” Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1262 (2011); see 5 U.S.C. §§ 552(a)(3)(A), (b)(1)-(9). The basic purpose of the FOIA reflects “a general philosophy of full agency disclosure.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quotation omitted); see also Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). The FOIA’s exemptions “are explicitly made exclusive” and “must be narrowly construed.” Milner, 131 S. Ct. at 1262 (internal quotation marks omitted). The burden is on the agency to justify withholding the requested documents, and the FOIA directs district courts to determine de novo whether non-disclosure was

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permissible. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 & n.6 (1989) (citing 5 U.S.C. § 552(a)(4)(B)). This court’s analysis of the scope of Exemption 7 in PEER, 740 F.3d at 202-06, is highly instructive, if not largely dispositive, here.
A. To fall within FOIA Exemption 7, “documents must first meet a threshold requirement: that the records were ‘compiled for law enforcement purposes.’” PEER, 740 F.3d at 202-03 (quoting 5 U.S.C. § 552(b)(7)). “[T]he term ‘compiled’ in Exemption 7 requires that a document be created, gathered, or used by an agency for law enforcement purposes at some time before the agency invokes the exemption.” Id. at 203 (citing John Doe Agency, 493 U.S. at 155). “Law enforcement entails more than just investigating and prosecuting individuals after a violation of the law,” id. (emphasis in original), and “‘includes . . . proactive steps designed to prevent criminal activity and to maintain security.’” Id. (alteration in original) (quoting Milner, 131 S. Ct. at 1272 (Alito, J., concurring)).
Applying these principles, the court held in PEER that emergency action plans and inundation maps created to prevent attacks on two dams on the U.S.-Mexico border and to maintain order and ensure dam security during emergencies satisfied Exemption 7’s gateway requirement. Id. at 204. Here, too, the Department has shown that it compiled SOP 303 for law enforcement purposes. SOP 303 was developed after the 2005 bombings of London’s transportation system to address deficiencies in the United States’ ability to address and respond to such threats. The Holzer declaration explains that SOP 303 sets forth the steps taken to decide whether and when to disrupt wireless networks during critical emergencies to, for example, “efficiently and effectively deter the triggering of radio-activated improvised explosive devices.” Holzer Decl.

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¶ 25. As so described, SOP 303 was created to prevent crime and keep people safe, which qualify as law enforcement purposes. PEER, 740 F.3d at 202-04. SOP 303 meets Exemption 7’s threshold test.
B. Even if a record satisfies Exemption 7’s threshold test, an agency may only withhold the record pursuant to Exemption 7(F) if the record’s release “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F); see PEER, 740 F.3d at 202. Our consideration of Exemption 7(F)’s scope begins and ends with its text. Milner, 131 S. Ct. at 1264, 1266-67.
Exemption 7(F) covers documents that “‘could reasonably be expected to endanger the life or physical safety of any individual.’” PEER, 740 F.3d at 202 (quoting 5 U.S.C. § 552(b)(7)(F)). The scope of the exemption is broadly stated, see id. at 205, and consequently the government, once it has met Exemption 7’s threshold test, “will ordinarily be able to satisfy Exemption 7(F) for documents relating to critical infrastructure, such as . . . emergency plans.” Id. at 206. Here, the Department maintains that disclosure of SOP 303, according to the Holzer declaration, “would enable bad actors to circumvent or interfere with a law enforcement strategy designed to prevent activation of improvised explosive devices” and “to insert themselves into the process of shutting down or reactivating wireless networks by appropriating verification methods and then impersonating officials designated for involvement in the verification process.” Holzer Decl. ¶¶ 25-26. That explanation shows that SOP 303’s production could reasonably be expected to place many individuals at risk and thus, the Department contends, SOP 303 falls within the scope of the plain text of Exemption 7(F).
EPIC maintains, however, that Exemption 7(F) requires the

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Department to identify with some specificity the individuals who would be endangered by SOP 303’s disclosure. It relies on American Civil Liberties Union v. Department of Defense, 543 F.3d 59 (2d Cir. 2008) (“ACLU”), vacated on other grounds, 558 U.S. 1042 (2009). In that case, the Defense Department had refused to release twenty-one photographs depicting abusive treatment of detainees by United States soldiers in at least seven different locations in Afghanistan and Iraq, invoking Exemption 7(F) on the ground that release of the photographs could reasonably be expected to endanger the life and physical safety of U.S. and Coalition troops, as well as civilians in Iraq and Afghanistan. ACLU, 543 F.3d at 64-65. The Second Circuit observed that “[t]he phrase ‘any individual’ . . . may be flexible, but is not vacuous,” id. at 67, and concluded, in view of the FOIA’s structure and the obligation of the court to construe its exemptions narrowly, that it “cannot [be] read . . . to include individuals identified solely as members of a group so large that risks which are clearly speculative for any particular individuals become reasonably foreseeable for the group.” Id. (emphases added). The court acknowledged that individuals could be identified in some other way than by name – “such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group.” Id. at 67-68. But just being a member of a vast group was not enough, see id., when the group referenced encompassed “a population the size of two nations and two international expeditionary forces combined.” Id. at 71. The court rejected the argument “that the broad scope of the word ‘any’ relieve[d] the[] [Defense Department] of the burden of identifying, even roughly, an individual,” id. at 68, noting that the Supreme Court has rejected wooden, uncritical capitulation to the word “any” without analysis of surrounding language and relevant legislative history. See id. at 68-69 (citing Small v. United States, 544 U.S. 385 (2005); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004)). The word “any” did not require

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such a broad interpretation in the FOIA context. Id. at 68. “[E]xemption 7(F), by conditioning its application on a reasonable expectation of danger to an individual, excludes from consideration risks that are speculative with respect to any individual.” Id. at 71 (emphasis in original).
Our decision in PEER does not foreclose this interpretation of Exemption 7(F), for in PEER the court had no occasion to decide whether it agreed with it. The court stated that “even if we agreed with the Second Circuit’s reading of Exemption 7(F), . . . the [agency] would prevail even under the Second Circuit’s approach.” PEER, 740 F.3d at 206 (emphasis added). Unlike in PEER, however, here the Department does not point to a “particularized threat to a discrete population,” id., but rather maintains its non-production falls within Exemption 7(F) because release of SOP 303 would endanger anyone in the United States who happens to be near an unexploded bomb or frequents high value targets. In the Department’s view, it would be anomalous if it could withhold SOP 303 if disclosure poses a danger to a small group of specifically identifiable people but not where many or most people would be endangered by production. Furthermore, the Department contends that, even under the Second Circuit’s interpretation, it has identified the individuals most likely to be at risk with the requisite degree of specificity because “there are identifiable groups who are more likely to be harmed” from SOP 303’s disclosure, including “people near unexploded bombs, people who frequent highvalue targets, and bomb squads and other first responders.” Appellant’s Br. 19. If viewed without regard to SOP 303’s requirement that there be a critical emergency for a shutdown to take place, then the Department’s interpretation may not accord with the Second Circuit’s approach. See ACLU, 543 F.3d at 71. Significantly, however, the context addressed by the Second Circuit involved “vast” populations and the court disclaimed that it was confronting a case where there was a showing of a

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reasonable expectation of danger with respect to one or more individuals, see id., which we conclude there is here.
The court must both narrowly construe the FOIA’s exemptions and apply the statute’s plain text. See Milner, 131 S. Ct. at 1262, 1264, 1267; see also John Doe Agency, 493 U.S. at 152-53; FBI v. Abramson, 456 U.S. 615, 630-31 (1982). The Supreme Court has rebuffed lower courts’ attempts to graft atextual glosses on the FOIA. See Milner, 131 S. Ct. at 1267; cf. CIA v. Sims, 471 U.S. 159, 169 & n.13 (1985). The FOIA provides no textual basis for requiring the Department, for purposes of Exemption 7(F), to identify the specific individuals at risk from disclosure, and to do so would be to “tak[e] a red pen” to the words chosen by Congress that are to be understood to have their ordinary meaning, Milner, 131 S. Ct. at 1264, absent indication to the contrary. Congress’ use in Exemption 7(F) of the word “any” is instructive. Generally, “‘the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’’” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219 (2008) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976))). Although there are statutory contexts in which “any” does not mean “any,” see Small, 544 U.S. at 388-89, 391-93; cf. Howard v. Pritzker, — F.3d — , Nos. 12-5370 & 12-5392, slip op. at 10-11 (D.C. Cir. Jan. 6, 2015), in the context of Exemption 7(F) the word “any” demands a broad interpretation. Congress could have, but did not, enact a limitation on Exemption 7(F), such as “any specifically identified individual.” See Sims, 471 U.S. at 169 n.13. By contrast, in the Privacy Act Congress afforded special treatment to certain law enforcement records associated with an “identifiable individual.” See 5 U.S.C. §§ 552a(a)(6), (j)(2)(B), (l)(2); cf. Sims, 471 U.S. at 169 n.13. The language of Exemption 7(F), which concerns danger to the life or physical safety of any individual, suggests Congress contemplated

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protection beyond a particular individual who could be identified before the fact. Exactly who will be passing near an unexploded bomb when it is triggered somewhere in the United States may often be unknowable beyond a general group or method of approach (on foot, by car, etc.), but the critical emergency itself provides a limit (e.g., a situs on the London transportation system). To be effective in protecting those individuals endangered in a critical emergency, the Department advises, SOP 303 relies on protocols that could be corrupted if made available to the public.
EPIC maintains that Congress’ choice to condition Exemption 7(F)’s availability on danger to an individual, rather than danger in general, indicates a requirement that the subject of the danger be identified with at least reasonable specificity. And according to EPIC, to reject its interpretation would read “individual” out of the statute, see ACLU, 543 F.3d at 70, thereby violating the anti-superfluity canon. See Milner, 131 S. Ct. at 1268; Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995). But understood in context, the phrase “any individual” makes clear that Exemption 7(F) now shields the life or physical safety of any person, not only the law enforcement personnel protected under the pre-1986 version of the statute. The district court took note of the 1986 amendment but went beyond the exemption’s plain text to impose a requirement divorced from the language Congress enacted. See EPIC, 999 F. Supp. 2d at 32-34. Contrary to EPIC’s suggestion that Congress could have made explicit that the government need not identify the individuals at risk with specificity, “the mere possibility of clearer phrasing cannot defeat the most natural reading of a statute.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670, 1682 (2012).
EPIC implies that its interpretation of Exemption 7(F) is rooted in the exemption’s command that disclosure “could

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reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F) (emphasis added). But EPIC does not explain why the release of records or information could reasonably be expected to endanger the life or physical safety of any individual only where the individual or individuals at risk can be identified specifically. Release of SOP 303, according to the Department, poses a concrete and non-speculative danger to numerous albeit unspecified individuals, see Holzer Decl. ¶¶ 25-26, and the Department thereby asserted a direct nexus between disclosure and a reasonable possibility of personal harm. See PEER, 740 F.3d at 206. The attacks in London that triggered the establishment of SOP 303 illustrate, as noted, that before-the-fact individual identification is unlikely to be practical. To the extent EPIC is suggesting that the Department has not satisfied Exemption 7(F)’s risk threshold, that suggestion is met by “[t]he confluence of Exemption 7(F)’s expansive text and [the court’s] generally deferential posture when [it] must assess national security harms.” Id. at 205 (citing Milner, 131 S. Ct. at 1272 (Alito, J., concurring)).
EPIC suggests that if there is a real danger from disclosure, then the Department should classify SOP 303, bringing it within FOIA Exemption 1, which protects materials that are classified pursuant to certain Executive orders. See 5 U.S.C. § 552(b)(1). The Second Circuit accepted a version of this argument in ACLU, explaining that
[i]t would be anomalous if an agency that could not meet the requirements for classification of national security material could, by characterizing the material as having been compiled for law enforcement purposes, evade the strictures and safeguards of classification and find shelter in [E]xemption 7(F) simply by asserting that disclosure could reasonably be

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expected to endanger someone unidentified somewhere in the world.
543 F.3d at 73. But the possibility of classification and the concomitant protection from disclosure provided by Exemption 1 do not render Exemption 7(F) superfluous. The Department has plausibly identified “practical barriers” to classifying SOP 303, including the fact that it “must be shared with federal law enforcement officials, [S]tate homeland security officials, and national cellular carriers.” Reply Br. 6. Nor does adhering to the plain text of Exemption 7(F) eviscerate Exemption 1, which applies even to records not compiled for law enforcement purposes.
The NCC is presumed to be aware of the need to restore service promptly, particularly in an age in which wireless communication is a critical component of peoples’ lives. See Riley v. California, 134 S. Ct. 2473, 2484, 2489 (2014); United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring); id. at 963 (Alito, J., concurring in the judgment). It remains for EPIC and other litigants to seek additional judicial scrutiny by requesting findings on specific matters or in camera review. At some point, as our precedent indicates, the element of trust takes over where an agency has filed a sufficiently specific sworn declaration by a knowledgeable official. See Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008); King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). Even if SOP 303’s shutdown protocol is a matter of significant public interest, balancing when the value of producing certain categories of documents outweighs the government’s generic justifications for non-disclosure is what the Congress has done in enacting and amending the FOIA. See Milner, 131 S. Ct. at 1265 n.5; PEER, 740 F.3d at 198; Pratt v. Webster, 673 F.2d 408, 416 & n.17 (D.C. Cir. 1982).

Case 1:13-cv-00260-JEB Document 23-1 Filed 06/01/15 Page 15 of 17
15
Finally, to the extent EPIC looks to Exemption 7(F)’s legislative history, the court’s choice when “presented, on the one hand, with clear statutory language and, on the other, with dueling [congressional statements],” is foreordained. See Milner, 131 S. Ct. at 1267. Prior to the 1986 FOIA amendments, Exemption 7(F) protected records the release of which would “endanger the life or physical safety of law enforcement personnel.” See Pub. L. No. 93-502, sec. 2(b), § 552(b)(7), 88 Stat. 1561, 1563-64 (1974). The exemption did not cover witnesses, interviewees, victims, informants, or families of law-enforcement personnel and thus, for example, undermined law enforcement officers’ ability to enlist informants. 131 Cong. Rec. 253 (daily ed. Jan. 3, 1985) (statement of Hon. Carol E. Dinkins, Deputy U.S. Att’y Gen.). To remedy this omission, the Executive Branch asked that Exemption 7(F) be amended. Id. In response, Congress expanded Exemption 7(F) to protect law-enforcement documents if their release would endanger “any individual.” 5 U.S.C. § 552(b)(7)(F); see Pub. L. No. 99-570, sec. 1802(a), § 552(b)(7), 100 Stat. 3207, 3255-56 (1986).
EPIC views Congress’ amendment of Exemption 7(F) in 1986 to bring only witnesses, interviewees, victims, informants, and families of law-enforcement personnel within the exemption. There are statements of Members of Congress and the Executive Branch that reflect concern about those groups’ prior omission. See 130 Cong. Rec. 3,502 (daily ed. Feb. 27, 1984) (statement of Sen. Hatch) (“The bill would . . . extend[] [E]xemption 7(F) to include such persons as witnesses, potential witnesses, and family members whose personal safety is of central importance to the law enforcement process.”); 130 Cong. Rec. 3,520 (daily ed. Feb. 27, 1984) (statement of Sen. Leahy) (describing certain changes to the FOIA as “narrowly aimed so that they will not interfere with the public’s right to know where law enforcement is not seriously jeopardized”). Other

Case 1:13-cv-00260-JEB Document 23-1 Filed 06/01/15 Page 16 of 17
16
Members’ statements viewed the amendment to Exemption 7(F) as relatively broad. For instance, Senator Hatch, the principal sponsor of the amendment, remarked that the changes to Exemption 7 were “intended to . . . ease considerably a Federal law enforcement agency’s burden in invoking” it. 132 Cong. Rec. 31,424 (daily ed. Oct. 15, 1986). Although General Dinkins stated that the language of Exemption 7 would be “modified slightly - not revised wholesale,” 131 Cong. Rec. 248, she also expressed concern that the prior version of the exemption did not protect “the life of any other person” besides law enforcement personnel. Id. at 253. And her explanation that the 1986 amendments expanded Exemption 7(F) “to include such persons as witnesses, potential witnesses, and family members,” id. (emphasis added), is reasonably understood as illustrative not exclusive. In any event, what Congress enacted was broad language that was not limited to protection of law enforcement personnel and related persons. See PEER, 740 F.3d at 205. “We will not . . . allow[] ambiguous legislative history to muddy clear statutory language.” Milner, 131 S. Ct. at 1266. “All we hold today is that Congress has not enacted the FOIA exemption [EPIC] desires. We leave to Congress, as is appropriate, the question whether it should do so.” Id. at 1271.
Accordingly, we hold that the Department permissibly withheld much, if not all of SOP 303, because its release, as described in the Holzer declaration, could reasonably be expected to endanger individuals’ lives or physical safety, and we reverse the grant of summary judgment. As such, we need not now decide whether Exemption 7(E) applies. See Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). We will remand the case, however, for the district court to address, in the first instance, the issue of segregability, see 5 U.S.C. § 552(b); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d

Case 1:13-cv-00260-JEB Document 23-1 Filed 06/01/15 Page 17 of 17
17 1022, 1028 (D.C. Cir. 1999), leaving it to determine “whether more detailed affidavits are appropriate or whether an alternative such as in camera review would better strike the balance between protecting [exempted] information and disclosing nonexempt information as required by the FOIA.” Stolt-Nielsen, 534 F.3d at 734-35 (alteration in original) (quotation omitted); see 5 U.S.C. § 552(a)(4)(B); Neill v. U.S. Dep’t of Justice by Reno, No. 93-5292, 1994 WL 88219, at *1 (D.C. Cir. Mar. 9, 1994).

 </s> Case 1:13-cv-00260-JEB Document 32 Filed 07/18/16 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff,
v. DEPARTMENT OF HOMELAND SECURITY,
De fe ndant.

Civil Action No. 13-260 (JEB)

ORDER For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that:
1. Plaintiff’s Motion for Attorney Fees and Costs is GRANTED IN PART and DENIED IN PART; and
2. Plaintiff is AWARDED fees and costs in the total amount of $20,145.04. IT IS SO ORDERED.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 18, 2016

1

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff,
v. DEPARTMENT OF HOMELAND SECURITY,
De fe ndant.

Civil Action No. 13-260 (JEB)

MEMORANDUM OPINION In July 2012, the Electronic Privacy Information Center submitted a Freedom of Information Act request to the Department of Homeland Security. EPIC sought information relating to Standard Operating Procedure 303, a document that describes DHS protocols for shutting down wireless networks during national emergencies. After the Agency told EPIC that it could not locate any responsive records, Plaintiff administratively appealed and eventually filed suit here. Although Defendant then released a heavily redacted version of SOP 303, EPIC wanted more. While EPIC temporarily prevailed in this Court, the Court of Appeals ultimately held that full release was not required, but remanded for a segregability analysis. After Defendant removed some redactions, this Court approved and closed the case. EPIC now asks for attorney fees and costs. Because Defendant concedes that Plaintiff is eligible for and entitled to some reimbursement, the Court will grant Plaintiff’s Motion for Attorney Fees in part. Plaintiff’s requested sum, however, will be significantly reduced to account for the limited nature of its success and for various billing-related deficiencies.

1

I. Background As past Opinions detail the background of this suit, see EPIC v. DHS (EPIC II), 777 F.3d
518, 520-22 (D.C. Cir. 2015), the Court recounts here only facts relevant to the pending Motion. In July 2012, EPIC submitted a FOIA request to DHS for:
1. The full text of Standard Operating Procedure 303; 2. The full text of the pre-determined “series of questions”
that determines if a shutdown is necessary; 3. Any executing protocols or guidelines related to the
implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations. MSJ, Exh. 1 (July 10, 2012, Letter from Amie Stepanovich to DHS) at 3. DHS wrote back that it had “conducted a comprehensive search of files within the DHS” and other offices, but, “[u]nfortunately, . . . w[as] unable to locate or identify any responsive records.” Id., Exh. 3 (August 21, 2012, Letter from Mia Day to Amie Stepanovich) at 1. Challenging the adequacy of DHS’s search – especially given that SOP 303’s existence was public knowledge – EPIC filed an administrative appeal. See id., Exh. 4 (September 13, 2012, Letter from Amie Stepanovich to DHS); Opp. to MSJ, Exh. 1 (October, 25, 2012, Letter from James Holzer to Amie Stepanovich). FOIA’s twenty-day appeal period quickly passed without further action from DHS, and so in February 2013, EPIC filed suit in this court. See 5 U.S.C § 552(a)(6)(A)(ii). While this case was pending, the administrative law judge in EPIC’s administrative appeal decided that DHS’s record “fails to demonstrate that [DHS] conducted an adequate search for responsive records” and remanded EPIC’s FOIA request for further review. See MSJ, Exh. 5 (March 25, 2013, Letter from Joanna Sherry to Amie Stepanovich) at 1.
2

That administrative decision, however, did not end matters. DHS located SOP 303 after conducting a more extensive search. But, in June 2013, the Agency produced to EPIC only a heavily redacted version of the document. Defendant withheld under FOIA Exemptions 7(E) and 7(F) all but four sentences of the substantive portions of SOP 303. See Opp., Exh. 1 (First SOP 303) at 1-7; see also 5 U.S.C. § 552(b)(7)(E), (F).
Summary-judgment briefing then focused on DHS’s reliance on those law-enforcementrelated exemptions. While this Court sided with Plaintiff, EPIC v. DHS (EPIC I), 999 F. Supp. 2d 24 (D.D.C. 2013), the Circuit reversed and remanded for this Court to decide only whether non-exempt portions of SOP 303 could be segregated from exempt portions and then produced. EPIC II, 777 F.3d at 528. After remand, Defendant released a second version of SOP 303 with fewer redactions and provided the Court an unredacted copy for in camera review. See Opp., Exh. 2 (Second SOP 303) at 1-7. This Court then determined that no other pages needed to be released and entered judgment. See July 10, 2015, Minute Order. No appeal followed.
Plaintiff now seeks to recover attorney fees and other expenses associated with this litigation. II. Analysis
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); see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee ‘eligibility’ and fee ‘entitlement.’” Brayton, 641 F.3d at 524 (quoting Judicial Watch, Inc. v. Dep’t of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). EPIC is “eligible” to receive fees if it has “substantially
3

prevailed.” Id.; Judicial Watch v. Dep’t of Commerce, 470 F.3d at 368. If EPIC is eligible, the Court must then “consider[] a variety of factors” to determine whether it is “entitled” to fees. Brayton, 641 F.3d at 524-25; Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008). If EPIC is both eligible for and entitled to receive fees, the Court proceeds to “analyze whether the amount of the fee request is reasonable.” EPIC v. DHS, 811 F. Supp. 2d 216, 237 (D.D.C. 2011).
Much of the attorney-fee legwork is done because DHS concedes both eligibility and entitlement. See Opp. at 7-8. What it strenuously objects to, however, is the amount sought. Before the Court addresses whether Plaintiff’s requested fees are reasonable, it pauses to address a threshold question of whether the Motion is timely.
A. Timeliness The Court first considers whether it is now too late for Plaintiff to request fees. Federal Rule of Civil Procedure 54(d)(2)(B)(i) provides that “[u]nless a statute or court order provides otherwise, the motion [for attorney fees] must . . . be filed no later than 14 days after the entry of judgment.” As DHS highlights, seasons have passed since the entry of judgment here in July 2015. Yet, in March 2016, following months of failed negotiations between the parties, EPIC filed a joint motion for a briefing schedule on attorney-fees issues, which the Court granted. See ECF No. 27 (Joint Motion for Briefing Schedule). Under these circumstances, Rule 54 does not present an obstacle to Plaintiff’s Motion. “[B]y its very terms, the fourteen-day deadline of Rule 54 is not a fatal jurisdictional deadline.” Am. Immigration Council v. DHS, No. 11-1972, ECF No. 52 (Memorandum Order and Opinion) at 2 (D.D.C. Sept. 24, 2014) (quoting Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 227 (2d Cir. 2004)). In this case, a “court order provide[d] otherwise” – namely, this Court set an attorneyfees briefing schedule, with which EPIC has complied. See Fed. R. Civ. P. 54(d)(2)(B)(i); April
4

5, 2016, Minute Order; see also Am. Immigration Council v. DHS, 82 F. Supp. 3d 396, 402 (D.D.C. 2015) (noting that court’s order setting briefing schedule satisfied Rule 54’s requirement). All the same, the Court observes that the delay in requesting attorney fees and in asking for a briefing schedule was not ideal – the Court has an interest in resolving fees issues when they “are freshly in mind,” Radtke v. Caschetta, 822 F.3d 571, 574 (D.C. Cir. 2016) (quoting Fed. R. Civ. P. 54 advisory committee’s notes) – and the Court trusts that EPIC will be more punctual in the future. Having said this, the timing of Plaintiff’s Motion is not fatal here.
B. Reasonableness of Fees The Court next addresses whether the sum EPIC seeks is reasonable. The “usual method of calculating reasonable attorney’s fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)). Though the starting point is the lodestar amount, that number may then be adjusted to reflect, for instance, “the significance of the overall relief obtained by the plaintiff.” Judicial Watch, Inc. v. DOJ, 774 F. Supp. 2d 225, 233 (D.D.C. 2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)). In parsing EPIC’s billing entries, the Court is mindful “that ‘trial courts need not, and indeed should not, become green-eyeshade accountants’ in examining fee requests since ‘[t]he essential goal . . . is to do rough justice, not to achieve auditing perfection.’” EPIC v. NSA, 87 F. Supp. 3d 223, 235 (D.D.C. 2015) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). Plaintiff puts forth a figure of $81,223.70 for fees and costs in the FOIA litigation. It further requests a surprising $26,097.35 for time spent litigating over attorney fees – i.e., “fees on fees.” Defendant asks for adjustments to the lodestar amount and for the Court to factor in
5

Plaintiff’s lack of merits success. The Court considers these two issues, then looks at fees on fees, and ends by computing the fee award.
1. Lodestar In examining the lodestar amount, the Court first addresses a point of substantial agreement – the hourly rates. In fleshing out rates, this Circuit has frequently employed the Laffey Matrix, “a schedule of fees based on years of attorney experience that was developed in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other grounds, 746 F.2d 4 (D.C. Cir. 1984).” ACLU v. DHS, 810 F. Supp. 2d 267, 277 (D.D.C. 2011) (quoting Judicial Watch v. DOJ, 774 F. Supp. 2d at 232). Because the Laffey Matrix is now over thirty years old, it is updated to reflect inflationary changes in the cost of legal services as reported by the Legal Services Index of the National Consumer Price Index, resulting in the so-called “LSI Laffey Matrix.” See, e.g., Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015). The parties agree that the LSI Laffey Matrix acts as a starting point. See Opp. at 17. Defendant does present a quibble – namely, that one of EPIC’s attorneys was identified as having “1-3 years” experience on the matrix even though she had completed only one year of postgraduate legal work. This objection is not persuasive. The Department of Justice has clarified that “1-3 years” of experience refers to an attorney’s first year to third year out of law school, not to an attorney having completed one to three years. See DOJ, Laffey Matrix – 2014-2015, https://www.justice.gov /s ites/default/f iles/ usao-dc/ legacy/ 2014/ 07/14/Laffey%20Matr ix_20142015.pdf; accord Heller v. District of Columbia, 832 F. Supp. 2d 32, 41 n.4 (D.D.C. 2011). The Court therefore accepts the LSI Laffey Matrix hourly rates used by EPIC.
6

Next, DHS and EPIC engage in a battle of the ledgers over which hours were reasonable and which were not. Defendant points to numerous instances of overbilling: billing travel at the full (as opposed to half) hourly rate, time spent reviewing DHS’s produced version of SOP 303, the presence of eight attorneys, and numerous conferences and e-mails with multiple attorneys. These objections are at times picayune. For example, snipping off the time spent reviewing SOP 303 would save only $64 – roughly, a .06% markdown of EPIC’s total proposed bill.
The Court declines to follow DHS down this rabbit hole. The goal in awarding fees is not line-item supervision of billing practices but “rough justice.” EPIC v. NSA, 87 F. Supp. 3d at 235. In that spirit, the Court recognizes that there are indeed inefficiencies in Plaintiff’s work. EPIC bills for multiple instances of three attorneys’ reviewing this Court’s one-sentence minute orders (sometimes the same minute order twice a day and sometimes for minute orders scheduling status hearings). See, e.g., Mot., Exh. G (Bill of Fees and Costs) at 17-19. Almost every page of the bill is replete with two-, three-, four-, or (sometimes) five-attorney status conferences or e-mails. A FOIA case, however, is fairly straightforward, and its “status” is easy to discern: once filed, the case typically proceeds to summary judgment. See Thornton-Bey v. Exec. Office for U.S. Att’ys, 844 F. Supp. 2d 159, 161 (D.D.C. 2012). Instead of blacklining the bill – e.g., two conferences instead of four, one attorney instead of three – the Court takes up Defendant’s proposal to factor in these inefficiencies when considering how to discount the overall fee request. See Opp. at 18-19. In other words, the Court will write off a percentage of EPIC’s bill “to reflect attorney inefficiency and other considerations.” CREW v. DOJ, 80 F. Supp. 3d 1, 5 (D.D.C. 2015).
The chief dispute over the lodestar revolves around the appropriate discount to apply. Both sides agree that some discount is necessary, but each proposal is a foil for the other. EPIC
7

suggests a 5% discount. DHS proposes several discounts that, when multiplied together, result in a discount of over 95%: inter alia, a 35% reduction for inefficient staffing, a 15% reduction for the discount that private lawyers typically offer their clients, and an additional 50% as a deterrent for overbilling. Neither of these approaches strikes the Court as appropriate, and it must thus make an independent determination.
Surveying the bill, the Court locates the main culprit: overstaffing. See AIC, 82 F. Supp. 3d at 411-12. Where it is easy for one attorney familiar with a case wholly her own to keep tabs on the docket, a group of attorneys might need to confer. Where for one attorney a scheduling order might warrant a quick (and unbilled) calendar entry, a group of attorneys might wish to discuss logistics. EPIC retorts that it staffed no more than four attorneys at a time. See Reply at 11. The first e-mail on the bill, however, reveals five. See Bill of Fees and Costs at 3. Even taking EPIC at its word, it is not apparent that four attorneys were needed. This was a procedurally straightforward FOIA case about one relatively short document. To counteract this overstaffing, the Court will apply to the lodestar – that is, to all of Plaintiff’s attorney-fees billing entries – a 35% discount. See, e.g., Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 761-62 (D.C. Cir. 1999) (per curiam) (reducing fees sought by approximately 50% due to “multiple attorneys performing the same tasks”).
2. Success on Merits After discounting the lodestar, the Court arrives at what Plaintiff would receive if it had won the case, start to finish. EPIC did obtain SOP 303, but DHS redacted so much of the document that EPIC cannot be said to have emerged triumphant in the final analysis. The Court, therefore, must consider Plaintiff’s “overall success on the merits . . . in determining the reasonableness of a fee award.” Judicial Watch v. Dep’t of Commerce, 470 F.3d
8

at 369. “In cases involving multiple discrete claims or issues that can be considered separately, this rule requires that hours spent on any unsuccessful claims be excluded from compensation.” Judicial Watch v. DOJ, 774 F. Supp. 2d at 233. Even where there is a “core base of facts” underlying the issues, the Court may still exclude fees on an issue-by-issue basis when each issue has a “unique legal basis.” Nat’l Sec. Archive v. U.S. Dep’t of Def., 530 F. Supp. 2d 198, 204 (D.D.C. 2008).
The Court first accounts for EPIC’s successes. Plaintiff filed its Complaint alleging that DHS had not made a reasonable search and that it had unlawfully withheld responsive records. Although Defendant perhaps turned over SOP 303 because of the administrative appeal and not because of the lawsuit, DHS does not challenge the causal nexus. See generally AIC, 82 F. Supp. 3d at 403 (discussing causation requirement for eligibility). From the Court’s vantage point, Plaintiff sued and Defendant searched, yielding SOP 303. EPIC obtained further, yet considerably reduced, success on remand after DHS removed a few redactions. Accounting for these successes, the Court will compensate fully the time spent preparing the Complaint and litigating on remand.
The remaining proposed fees for the merits case generally include time spent on summary-judgment briefing, the appeal, and petitions for rehearing en banc and for writ of certiorari. EPIC rightly does not seek compensation for the latter, unsuccessful petitions. As for summary-judgment briefing and the appeal, EPIC succeeded to the extent that it convinced the Circuit to remand for consideration of segregability. Plaintiff did not, however, succeed on the FOIA-exemption issues being litigated – that is, it did not convince the Circuit that SOP 303 should be substantially released.
9

The question then is how to calculate Plaintiff’s limited success. While EPIC does not separate in its bill the time spent briefing segregability, DHS proposes a method: counting the pages EPIC spent briefing segregability in the argument sections of its briefs. The Court adopts this approach, though modifies DHS’s shaky arithmetic. For the segregability issue, EPIC devoted:
 3.5 pages out of 11 pages of argument in its summary-judgment opening brief, see SJ Opp. at 14-17;
 3.5 pages out of 15 pages of argument in its summary-judgment reply brief, see SJ Reply at 6; and
 4.5 pages out of 22 pages of argument in its appellee brief, see Appellee Br. at 2731, No. 14-5013 (D.C. Cir. July 7, 2014).
In total, roughly 24% of argument in legal briefing was devoted to segregability. The Court will, accordingly, reduce Plaintiff’s fees in preparing these briefs by 76%.
3. Fees on Fees EPIC last seeks fees for briefing the instant Motion. DHS asks the Court to reduce the fees-on-fees award commensurate with reductions to merits fees. The Court obliges. Courts regularly conclude that fees on fees should be reduced to exclude time spent on unsuccessful fee requests. See, e.g., Nat’l Veterans Legal Servs. Program v. Dep’t of Veterans Affairs, No. 961740, 1999 WL 33740260, at *5-6 (D.D.C. Apr. 13, 1999); see also Comm’r, INS v. Jean, 496 U.S. 154, 163 n.10 (1990) (“[F]ees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation.”). This Court, therefore, will award EPIC the same “percentage of fees for fee litigation as it does for fees on the merits.” EPIC v. DHS, 982 F. Supp. 2d 56, 61 (D.D.C. 2013); accord Judicial Watch, Inc. v. DOJ, 878 F. Supp. 2d 225, 241 (D.D.C. 2012).
10

The Court, however, must also withhold fees on fees “where the plaintiff needlessly prolongs litigation.” Jones ex rel. D.T. v. District of Columbia, No. 15-155, 2015 WL 9907797, at *5 (D.D.C. Oct. 29, 2015) (emphasis omitted). As discussed, Plaintiff waited long past the Rule 54 deadline before filing its present Motion. Significant chunks of EPIC’s fees-on-fees request are essentially for prior failed efforts to extract fees through negotiation, divorced from any formal fee request. While the Court encourages parties to resolve their differences without motions, here EPIC’s exorbitant demands seem to have unnecessarily prolonged this case. The Court will thus only accept as potentially recoverable the time spent after settlement talks fell through – that is, $5,764.40 for EPIC’s Motion. See EPIC v. NSA, 87 F. Supp. 3d at 234 (declining to compensate wasteful negotiations).
Finally, because DHS had no opportunity to contest fees requested for drafting the fees Reply, the Court “scrutinizes them particularly carefully.” EPIC v. FBI, 72 F. Supp. 3d 338, 355 (D.D.C. 2014). Here, EPIC requests $14,204.30 for the Reply. This amount is untenable. Plaintiff fails to clarify how it took 12 hours to draft and edit the Motion but 32.4 hours to draft, edit, and review the Reply. Compare Bill of Fees and Costs at 23-24, with Reply, Exh. 2 (Supplemental Bill of Fees and Costs) at 2-3. The two briefs were of comparable length. And DHS brought up only one wholly new issue in its Opposition – timeliness. EPIC presumably was familiar with other issues relating to the reasonableness of the fees. Considering the Reply was of similar complexity to the Motion, the Court grants the same fees for both. Cf. EPIC v. FBI, 80 F. Supp. 3d 149, 160-63 (D.D.C. 2015) (granting similar amounts for motion and reply).
4. Calculations Now, it’s time for the math. The Court discounts the lodestar 35% to account for overstaffing, see supra Section B.1, and then adjusts based on EPIC’s success. See supra
11

Section B.2. EPIC bills $4,524.60 for preparing the Complaint before March 16, 2013. With reductions, EPIC will receive:

$4,524.60 × .65 = $2,940.99

EPIC bills $3,482.80 for time spent on the segregability issue between June 2, 2015, and

July 10, 2015. With reductions, EPIC will receive:

$3,482.80 × .65 = $2,263.82

EPIC bills $85,010.40 (less the above fees) for the remainder of the merits case. With a

76% reduction for lack of success, EPIC will receive: ($85,010.40 − $4,524.60 − $3,482.80) × .24 × .65 = $12,012.47

Next, the Court calculates how much Plaintiff’s requested merits fees were overall

reduced from what EPIC requested, a calculation that factors in the overstaffing discount:

$2,940.99 + $2,263.82 + $12,012.47

$80,759.88

= ~.2132

The Court applies this reduction of 21.32% to the fees-on-fees briefing: ($5,764.40 + $5,764.40) × .2132 = $2,457.94

Finally, to calculate the total fee award (together with $469.82 in costs, which DHS

accepts), the Court adds it all up as follows:

$2,940.99 + $2,263.82 + $12,012.47 + $2,457.94 + $469.82 = $20,145.04

III. Conclusion In sum, after tallying discounts and deductions, Plaintiff sought $107,321.05 in attorney

fees and costs and will receive $20,145.04. A separate Order so stating shall issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge
Date: July 18, 2016

12

 </s> September 25, 2009

FC)R OFF! CL'\L USE O't'~ LY

NCC SOP 303

W arnin g: This clocumcnt is UNC!.../\SS!F !EDf!fOR OFF! C! /\L USE ONLY (U!/FO UO). ll co nt~1;11s 1nformut:on til, 1l nny be e><c:mpt f10m pu!lllc r0!e.1se under thG Fre;_:dom of lnform<Jtlon Act ( 5 U S C '-•S.~ 1 IllS l\ • th· .:vlll roli•~(J sto red . l landlod . tr:Hbnlll ted. J;s l ributed . Wlil d t:->posed of 111 <lCcorcJ;-mcc
w iltI DHS pulley f•'Litlil(J to F()t JO 111format1on and 1s no t to l)lC: relensmi to H1c: plllliiC, the mc:dJ<'l, or oth e r
personnel who do nnl !l<.l'''') :-1 V~ 1 l 1rJ "need-to -know wiihot ll pno1<lpproval of clll cl Ulllorized D H S offi c1nl. Sl<WO! ;wd locnl Hnmeland ~owri ly o fiiCIClls m i:ly share tl 1is document with au ll1oriLeli security personnel w 11t1out further ap proval from DHS.
NCC STANDARD OPERATING PROCEDURE (SOP) 303:

Emergency Wireless Protocols

I. Purpose. This SOP provides deta iled procedures for the National Coordinating Center for Telecommun ications (NCC) 1to coordinate requests for the disruption of cellular serv ice.

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FOJR- GF-F-IGIA-b-1J-S-E-QN-L¥

Page I of30

Office of Primary Responsibi lity: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
f:Q-R- GF-F-1GI-AL-tJSE-0NLY

Page 2 of30

September 25, 2009

FOR OFF!CIAb-USE ONLY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FQR- GF-FlG-IAb-YSE-ON-b-Y

Page 3 of30

September 25, 2009

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
F-0-JR- GF-FIG-I-,6.-b-YSE-GNL¥

Page 4 of30

September 25, 2009

FOR OFFICIAL USE ON LY

NCC SOP 303

Office of Primary Responsibil ity: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FQH-QFFICL<\L-USE ONL¥

Page 5 of30

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FGR-GFFIGIAL-USE -GNL¥

Page 6 of30

September 25, 2009

FOR OFFIGIJ\L USE OJ\lLY

NCC SOP 3 03

6. Review. Review annually and following any instance where these procedures are imple mented .
7. Supersession. This is the initi al issue of this SOP.

Office of Primary Responsibility: NCC Distri bution: OMNCS, NCC, NOC, All POCs in Appendix A
FGP GF-FIGIAb USE-ONb¥

Page 7 of30

September ? 5, 2009

FOR OFFV' !1\ L USE ONLY

NCC SOP 303

~pen dix A: Points of Contact
Append ix A will be updated as required based on input provided by the State Homeland Security Adv isors.
A L ABAMA Alabama Emergency Managcmcm Agency 5898 County Road 4 1. P.O. Dr:mer 2160, Clanton, Alabama 35046-2 160 Ph: 251/180-2::!00 Fax: 205/280-2493 24- Hr: 800/843-0699
(b)(6); (b)(7)(c) (b)(6); (b)(?)(c) (b)(6); (b)(?)(c)
AL ASKA Aiaska Div. of Homeiand " ecurity and Emergency Management
P.O. Box 5750, Fort Richardson, AK 99505-5750
Ph: 602/244-0504 Fax: 907/428-7009 24-Hr: 907/428-7000
(b (6); (b)(?)(c) (b)(6); (b)(?)(c) (b)(6); (b)(?)(c)
A I{IZONA Arizona Div. of Emergency Management 5636 E. McDowell Road, Phoenix, AZ 85008-3495
Fax: 602/231 -6263 24-Hr: 800/4 11-2336 (b)(6); (b)(7)(c)

A RKANSAS
or Arkansas Depa rtment Emergency Managt:mcnt
P.O. Box 758. Conway. AR 72033 Ph: SO 11730-9750 (24-Hr.) Fax: 501 /730-9778
PrOo~ni'V' 800iJ22-40 12 Of 50 1/73 0-9751

CALI FORNIA Californ ia Offici:! of Emergency Services 3650 Schriever Avenue, Mmht:r, CA 95655 Ph : 916/845-85 10 Fax: 9 16/845-8506
Office of Primary Responsibility: NCC Distribution: OM NCS, NCC, NOC, All POCs in Appendix A
FOR OFFIClf\L US E ONLY

Page 8 of 30

September 25, 2009

FOR OFF!C! i\L USE ONLY

(b)(6); (b)(?)(c)

I

COLORADO
Division of Emergency Management 9195 East Mineral Avenue. Suite 200, CentenniaL Colorudo 80112 Ph: 720/852-6600 Fax: 720/852-6750
(b)(6); (b)(?)(c)

CON NECTICUT Deportment of Emergency Management and Homeland Security 25 Sigourney Street. 6th Floor, Hartford, CT 06106-5042 Ph: 860/256-0800 or 800/397-8876
Fax: 860/256-08 15
(b)(6); (b)(?)(c)

DELAWARE Department oC Sarety and llomeland Security Delaware Em<::rgcncy Management Agency 165 Brick Store Landing Road, Smyrna, DE 19977 Ph: 302/659-3362 Fax: 302/659-6855 24-Hr: 877/729-3362 (Delaware Only)
(b)(6); (b)(?)(c) (b)(6); (b)(7)(c)
DISTRICT OF COLUMBIA

mergcncy Management Agency 2720 Martin Luther King Jr. Ave., SE. Washington. DC 20032 Fax: 202/673-7054 or 202/673-2290 24-Hr: 2021727-6161 ( hift Supervisor)
(b)(6); (b)(?)(c)
FLORIOA Division of Emergency Management 2555 Shumard Oak Boulcvnrd, Tallahassee, FL 31399-2 100 24-1-lr: 850/413-9911 and 800/320-0519 Fax: 850/488-1 739
(b)(6); (b)(?)(c)
Office of Primary Responsibi lity: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FOI~ OFFICl/\L USE ONLY

NCC SOP 303 Page 9 of30

September 25, ?009 (b)(6); (b)(7)(c)

-FOR OFF!C!AL USE ONLY

GEORGIA

Georgia Emergency Management Agency

935 East Confe derate Avenue, SE, Atlanta, GA 303 16

Ph: 404/ 635-7000 or J-800-TRY-GEMA (in Georgia only)

Fax: 404/635-7205

(b)(6); (b)(7)(c)

(b)(6); (b)(7)(c)

(b)(6); (b)(7)(c)

HAWAII Oahu Civil Defense Agency 650 S. King Street, Basement, Honolulu, HI 96813 Fax: 808/524-3439 24-Hr: 808/529-391 I

24-Hr: 808/244-6400

(b)(6); (b)(7)(c)

I

Hawaii County Civil Defense Agency

920 Ululani Street, 1-Iilo, HI 96720

Fax: 808/935-6460

24-Hr: 808/935-3311

(b)(6); (b)(7)(c)

IDAHO Bureau of Homeland Security 4040 Guard Street, Bldg. 600, Boise, ID 83705-5004 Ph: 208/334-3460 Fax: 208/334-2322
- 24-Hr: 208/846-7610 or 800/632-8000 (Idaho only)
(b)(6); (b)(7)(c)
ILLINOIS

Illinois Emergency Management Agency I I0 E. Adams Street. Springfield, IL 6270 I Fax : 217/557-2 145 24-Hr: 217!782-7860
(b)(6); (b)(7)(c)

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, Al l POCs in Appendix A
FOF{ OFFICIAL USE ONLY

NCC SOP 303 Page10of30

September 25, 2009

FOR OFF!C!AL USE ONLY

INDI ANA State Emergency Management Agency 302 W. W~tshington, Room E-208, Indianapolis, IN 46204-1760 Ph: 3 171232-3830 Fax: 3 17/232-3895 24-llr: 800/669-7362

IOWA

ome

Di vision

Hoover t:llc Office Building

1305 E. Walnut, Level/\, Des Moines, 1/\ 50319-0 I 13

Pax: 515/281-7539

24-Hr: 5 15/28 I -323 I

(b)(6); (b)(?)(c)

I

KA NSAS

Division of Emergency Management

1800 .W. Topeka Blvd., Topeka. KS 666 11-1287

Ph : 785/274- 1409 Fax: 785/274- 1426
24-Hr: 785/296-3176 or 800/905-7521
(b)(6); (b)(?)(c)

-

KENTUCKY Division ol' Emergency Management Emergency Operations Center I 00 Minuteman Parkway, Roone Centcr. Frankfort, KY 40601-6 168 Ph: 502/607- 1638 Fax: 502/607-1614 24-l-lr: 800/255-2587
(b)(6); (b)(?)(c)
I
I

LOU ISIANA Office of llorndand Security and F.mergency Prcparcdness 7667 Independe nce Blvd., Baton Rouge, LA 70806 Ph : 225/925-7500 Fax : 225/925-750 1

Office of Primary Responsibility: NCC Di stribution : OMNCS, NCC, NOC, All POCs in Appendix A
FOR OFFICIAL USE ONLY

NCC SOP 303 Page I I of 30

September 25, 2009 (b)(6); (b)(?)(c)
MA I NE

1:'1"10 f"'CCif' l A I I I QC 1"11'1.11 V

l

-'-.,.#l'\. '-Jt

.&

ILl I \.L..

~...fl,...).a...,. '\..ll 'L-

I

Maine Emergency Management Agency

72 State Ilouse tation. Augusta. ME 04333-0072

Ph : 207/624-4400

24-Hr: 207/624-7000 or 1-800-452-8735 (in-state on
(b)(6); (b)(?)(c)

MARYLAND Maryland Emergency Management/\gency 540 I Ru e St. Lo Driv~. Reisterstown. MD 21 136 Fax: 410/5 17-36 10 24-l-lr: 410/5 17-3600
(b)(6); (b)(?)(c)

MAS ACH USETTS Emt:rgcncy Management Agency 400 Worcester Road ( Route 9 Eastbound). Framingham. MA 01702-5399 Ph: 508/820-2000 Fax : 508/820-2030 24-Hr: 508/820-2000

NCC SOP 303

M IC IIIGA N

ergcncy anagement Division P.O. Box 30636. Lansing, M l 48909-8 136 Ph : 5 17/332-252 1 Fax: 5 17/333-4987
(b)(6); (b)(?)(c)

M INNESOTA

llomeland Security and Emergency Management

444 Cedar Street, Suite 223, St. Paul, MN 55.] 01 -6223

Ph: 651-296-2233
Fax : 65 1/296-0459 or 651/297-737?.
(b)(6); (b)(?)(c)

-

Oflice of Primary Respons ibi lity: NCC

Distribution: OMNCS, NCC, NOC, All POCs in Appendix A

F OR OFFIC IAL USE ONLY

Page 12 of30

September 25, 2009 (b)(6); (b)(7)(c)

"L; . C'r'\ D f'\C'r.' l r l A J J IC'C f'\lo. I J V
1 \..J J '- '-.JI .I 1 '-1/ \&..,. VUL... '-'1

M I S S IS S I P P I Mississippi Emergency Management Agency 1410 Riverside Drive. Jackson, MS 39202- 1297 P.O Box 450 I, Jackson, MS 39296-450 I Phone: 601 /352-9100 Fax: 601/352-8314 24-Hr: 1-800-222-MEM;\(6362)
(b)(6); (b)(7)(c)
MISSOURI Emergency Management Agency 2302 Militia Drive, P.O. Box I 16, Jefferson City, MO 65102 Fax: 573/526-9261 24-Hr: 573175 1-2748
(b)(6); (b)(7)(c)

MONTANA

Disaster and Emergency Services

P.O. Box 4789 mi tigation. Helena, MT 59604-4789

Ph: 406/84 1-3911 (duty office r)

Fax: 406/841-3965

Emergency: 406 '841-391 l
(b)(6); (b)(7)(c)

•

NEBRASKA Emergency Ma nagement Agency 1300 Military Road, Lincoln, NE 68508-1 090 Fax: 402/47 1-7433 24-Hr: 402/471 -7421 and 877/297-2368

NEVADA Department of Public Safety Division of Emergcncy Management 2525 S. Carson S treet, Carson City, NY 897 11 Ph: 775/687-4240 Fax: 775/687-6788 24- Hr: 775/688-2830
(b)(6); (b)(7)(c)
Office of Primary Responsibil ity: NCC Distribution: OM NCS, NCC, NOC, All POCs in Append ix A
FOH OFFIC1J\L USE ONLY

NCC SOP 303 Page 13 of' 30

September 25, 2009
NEW HAMPSI·IIIU: Division of Emergency Services, Communications and Emergency Management Bureau of Emergency Management 33 Hazen Drive, Concord, N il 03305 I07 Pleasant Strt:ct, State Orfice Park South, Com:ord. NH 0330 I Fax: 603/225-734 1 24-Hr: 603/27 1-3636 or 1-800-852-3792 (New Ha
(b)(6); (b)(7)(c)
NEW JEllSEY Department of Environmento l Protection State Emergency Response Commission (SERC) New Jersey Office of Emergency Management P.O. Box 7028. Trenton, NJ 08628 Fax: 609/777-0985

NCC SOP 303

NEW MEXICO New Mexico Department of Public Safety Office of Emergency Ma11agemcnt PO Box 1628, Santa Fe. NM 87504 Fax: 505/476-9695 24- Hr: 505/476-9635
(b)(6); (b)(7)(c)
NEW YORK State Emergency Management Office 1220 Washington Avenue, Building 22, Suite I0I, Albany, NY 12226-2251 Ph : 581 /292-2000 Fax: 518/457-9930 24-Hr: 5 18/457-2200
{b)(6); (b)(7)(c)
NORTH CAROLINA

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Append ix A
FOF~ OFFICll\L USE ONLY

Page 14 of 30

September 25,2009

FOR OFHCL'\L USE ONLY

I 16 W Jones St, R11leigh. NC 27603 Ph: 9191733-3867
Fax: 9 19/733-7554 14- Hr: 919/733-3300 or 800/858-0368
(b)(6); (b)(7)(c)

NORTH DAKOTA

Division of Emergency Management

P.O. Box 5511 , Bismarck. ND 58506-5511

Ph: 701 /318-8100
Fax: 701 /328-8181 24-Hr: 701 /328-9921
(b)(6); (b)(?)(c)

....

anagement Agency 2855 W. Dublin-Granville Road, Columbus, 011 43235-2206 Fax: 6 14/889-7183 24-Hr.: 614/889-7150
OKLAHOMA Department of Emergency Management 240 I Lincoln Blvd- Suite C5 1, P.O. Box 5J.365, Oklahoma City, OK 73 152 Ph: 405/52 1-24 81 Fax: 405/521-4053 24-Hr: 800/800-2481

NCC SOP 3 03

P.O. Box 14370, Salem, OR 97309-5062 Fax: 503/588-1378 24-Hr: 800/452-0311 (b)(6); (b)(7)(c)
Office of Primary Responsibi lity: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
F01~ OFF!Cli\L USE ONLY

Page 15 of30

September 25, 2009

FOR OFFJCL'\L USE ONLY

P E N N S Y LV A N I A Pennsylvania Emergency Management Agency 2605 Intersta te Drive , Harrisburg, PA 171 I0-9364 Fax: 717/651-2021 24-Hr: 717/651 -2001
(b)(6); (b)(7)(c)

RHODE JSLAND Emergency Management Agency
645 New London Avenue, Cranston, r{ I 029·20
Fax: 401 /944-1891 24-Hr: 401 /946-9996
(b)(6); (b)(7)(c) (b)(6); (b)(7)(c)
'
SOUTH CAROLINA

ergency anagement Division Pine Ridge Armory 2779 Fish Hatchery Road, West Columbia, SC 29172-2024 Fax: 8031737-8570 24-Hr: 803/737-8500
(b)(6); (b)(7)(c) (b)(6); (b)(l)(c)
SOUTH DAKOTA Department of Public Safety Office of Emergency Mam1gement 118 W. Capitol Avenue, Picrre, SD 57501 Ph: 6051773.32321 Fax: 605/773.3580 24-Hr: 6051773-3231
(b)(6); (b)(7)(c)
TENN ESSEE Tennessee Emergency Management Agency 3041 Sidco Drive, Nashvi lle, TN 37204-1502 Fax: 6 I5/242-9635 24-Hr: 615/74 1-000 I & In-Stale: 800/262-3400, Out-of-State: 800/258-3300
(b)(6); (b)(7)(c)
Oftice of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FO:R OFFICIAL USE ONLY

NCC SOP 303 Page 16 of30

September 25, 2009 (b)(6); (b)(7)(c)

-

T E X AS
Texas Department of ru blic Safety Emergency Management Division 5805 North Lamar Blvd.. Austin. Texas 787 52-4422 Fax: 5121424-2444 24-Hr: 512/424-2208
(b)(6); (b)(7)(c)

UTAH
Department of Public Safety Div. of Emergl!ncy Services and Homeland Security State Office Building. Room I ll 0, Salt Lak·e City. UT 84114 Fax: 80 1/ 538-3770 24-Hr: 801 /538-3400 or 1-800-SL-FAULT

VERMONT Department of Public Sale ty Emergency Management Division I03 S. Main Street. Waterbury. VT 05671-2 101 Ph: 802/244-872 1 Fax: 802/241-5556 24-Hr: 8001347-0488
(b)(6); (b)(7)(c) (b)(6); (b)(7)(c)
V IRG INI A
IP n~.rtm.~nt of Emergency Management I0501 Trade Court Virgin ia, Richmond, VA 23236-37 13 Fax: 804/897-6576 24-Hr: 804/674-2400 or 800/468-8892
(b)(6); (b)(7)(c) (b)(o); (b)(7 )(c)
WASHINGTON Washington Sta te Emergency Management Building 20, Camp Murray Tacoma. WA 98430 Ph : 800-562-6108 24-hr: 1-800-258-5990
(b)(6); (b)(7)(c)
OfTicc of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FOfZ OFFICIAL USE ONLY

NCC SOP 303 Page 17 of 30

September 25, 2009 (b)(6); (b)(7)(c)

-FOR OFF!C!t\L USE ONLY

WEST VIRGINI A

Division of Homeland Security and Emergency Managemcm

Bldg. I Rm. EB-80. 1900 Kanawha Blvd. East, Charleston WV 25305

Ph: 304/558-5380

Fax: 304/558-4538

24-Hr: 800/342-3074

(b)(6); (b)(7)(c)

WISCONSIN Wisconsin Emergency Management
2400 Wright Street, J>.O. Box 7865 . Madison, WI 53708
Ph: 608/242-3232 Fax: 608/242-324 7 24-llr: 800/ 943-0003 or 608/242-3232
(b}(6); (b)(7)(c)
I
WYOMING Emergency Management 1\gt.:ncy Ortice of Homeland Sccuriry 624 E. Pershing, Cheyc1111c, WY 8200 I Ph: 3071777-4663
Fax: 307/638-76 70 24-Hr: 307/777-4321
(b)(6); (b)(7)(c)

NCC SOP 303

Oftice of Primary Responsibil ity: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FOF~ OFPICIAL USE ONLY

Page 18 of 30

September 25, 2009

FOR OFF!C!J\L USE ON LY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FGH-Q.FCF'IGIAL - l J S E- 0 N b - ¥

Page 19 of30

September 25. 2009

FOR OFF!Cli\L USE ONLY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FGH- GF-F-IGI:Ab-'67SE-G N-b--Y-

Page 20 of30

September 25, 2009

FOR OFFICl i\L USE ONLY

NCC SOP 303

Office of Primary Responsibi li ty: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FOH OFFICIAL USE ONLY

Page 2 I of30

September 25, 2009

FO R OFF!f.'!i\L USE ON LY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, Al l POCs in Appendix A
FGR-OFFIGlAb USE-ONLY.

Page 22 of30

September 25, 2009

FOR OFF!CI/\b USE ONLY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
F O R--G F F - I G I A b -U S E- G N-bY

Page 23 of30

September 25, 2009

FOR OFF!Cli\L USE ONLY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FOR- GF-F-1-GI-A-b -lJSE- GNL¥

Page 24 of30

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FQ-.R- G-F-F-I-G.J.Ab-Y-SE-G N-b-Y

Page 25 of30

Office of Primary Respo nsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FG R-OFF-IGIA-L-"USE-0~!-b¥

Page 26 of30

September 25, 2009

FOR OFF!CL'\L USE ONLY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
F-GR- GFJLIGI-Ab-USE-GN-k¥

Page 27 of30

September 25, 2009

FOR OFF!C!AL USE ONLY

NCC SOP 303

Offic.e of Primary Responsibil ity: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FGR --0FFIGIA L-U-SE-O N-bY:

Page 28 of30

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Append ix A
FO!~ OFF-ICIAL USE ONLY

Page 29 of30

September 25, 2009

FOR OFF!Cll\L USE ON LY

NCC SOP 303

Office of Primary Responsibility: NCC Distribution: OMNCS, NCC, NOC, All POCs in Appendix A
FG-JR- GF-FIGIAL USE ONL¥

Page 30 of30

 </s> Case: 1:13-cv-260 As of: 12/11/2016 01:35 PM EST 1 of 5
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:13−cv−00260−JEB

ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF HOMELAND SECURITY Assigned to: Judge James E. Boasberg Case in other court: 14−05013 Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 02/27/2013 Date Terminated: 07/10/2015 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ELECTRONIC PRIVACY INFORMATION CENTER

represented by Alan Jay Butler ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140 ext 103 Fax: (202) 483−1248 Email: butler@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc Rotenberg ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140, ext 106 Fax: (202) 483−1248 Email: rotenberg@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thailam John Tran ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140 Fax: (202) 483−1248 Email: tran@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ginger P. McCall DEPARTMENT OF JUSTICE Office of Privacy and Civil Liberties 1331 Pennsylvania Ave.,N.W. Suite 1000 Washington, DC 20530 (202) 483−1140 Fax: (202) 483−1248 Email: mccall@epic.org TERMINATED: 08/26/2013

V. Defendant

Case: 1:13-cv-260 As of: 12/11/2016 01:35 PM EST 2 of 5

DEPARTMENT OF HOMELAND SECURITY

represented by Justin Michael Sandberg U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 514−5838 Fax: (202) 616−8202 Email: justin.sandberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/27/2013 02/27/2013 02/27/2013 02/28/2013 03/15/2013 03/18/2013
04/17/2013 04/17/2013 04/18/2013 05/17/2013 05/20/2013
05/21/2013
06/13/2013

# Docket Text
1 COMPLAINT against DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350 receipt number 0090−3233293) filed by ELECTRONIC PRIVACY INFORMATION CENTER.(McCall, Ginger) (Entered: 02/27/2013)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 02/27/2013)
Case Assigned to Judge James E. Boasberg. (md, ) (Entered: 02/27/2013)
3 NOTICE of Civil Cover Sheet by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Summons)(McCall, Ginger) (Entered: 02/28/2013)
4 ELECTRONIC SUMMONS Issued (3) as to DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent, # 2 Consent Form)(md, ) (Entered: 03/15/2013)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/18/2013. Answer due for ALL FEDERAL DEFENDANTS by 4/17/2013. (McCall, Ginger) (Entered: 03/18/2013)
6 ANSWER to Complaint by DEPARTMENT OF HOMELAND SECURITY.(Sandberg, Justin) (Entered: 04/17/2013)
7 ORDER requiring the parties to consult and file a joint proposed briefing schedule by May 17, 2013. Signed by Judge James E. Boasberg on 4/17/2013. (lcjeb2) (Entered: 04/17/2013)
Set/Reset Deadline: Parties to consult and file a joint proposed briefing schedule by 5/17/2013. (ad) (Entered: 04/18/2013)
8 MEET AND CONFER STATEMENT. (McCall, Ginger) (Entered: 05/17/2013)
MINUTE ORDER adopting the parties' 8 Joint Proposed Briefing Schedule. The Court ORDERS that: (1) Defendant shall file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by June 14, 2013; (2) Plaintiff shall file a Combined Opposition to Defendant's Motion and any Cross−Motion for Summary Judgment by July 12, 2013; (3) Defendant shall file a Combined Reply in support of its Motion and Opposition to any Cross−Motion by July 26, 2013; (4) Plaintiff shall file a Reply in support of any Cross−Motion by August 9, 2013. Signed by Judge James E. Boasberg on 5/20/13. (lcjeb2) (Entered: 05/20/2013)
Set/Reset Deadlines: Defendant shall file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by 6/14/2013; Plaintiff shall file a Combined Opposition to Defendant's Motion and any Cross−Motion for Summary Judgment by 7/12/13; Defendant shall file a Combined Reply in support of its Motion and Opposition to any Cross−Motion by 7/26/2013; Plaintiff shall file a Reply in support of any Cross−Motion by 9/09/2013. (ad) (Entered: 05/21/2013)
9 Consent MOTION for Extension of Time to File Summary Judgment and Otherwise Amend Briefing Schedule by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Sandberg, Justin) (Entered: 06/13/2013)

Case: 1:13-cv-260 As of: 12/11/2016 01:35 PM EST 3 of 5

06/13/2013
06/14/2013
06/28/2013 07/26/2013 07/26/2013 08/09/2013 08/09/2013 08/22/2013 08/23/2013 08/26/2013 11/12/2013
11/12/2013 11/22/2013 11/22/2013

MINUTE ORDER granting Defendant's 9 Consent Motion to Amend Briefing Schedule. The Court ORDERS that: (1) Defendant shall now file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by June 28, 2013; (2) Plaintiff shall now file a Combined Opposition to Defendant's Motion and any Cross−Motion for Summary Judgment by July 26, 2013; (3) Defendant shall now file a Combined Reply in support of its Motion and Opposition to any Cross−Motion by August 9, 2013; and (4) Plaintiff shall now file a Reply in support of any Cross−Motion by August 23, 2013. Signed by Judge James E. Boasberg on 6/13/2013. (lcjeb2) (Entered: 06/13/2013)
Set/Reset Deadlines: Defendant shall now file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by 6/28/2013; Plaintiff shall now file a Combined Opposition to Defendant's Motion and any Cross−Motion for Summary Judgment by 7/26/2013; Defendant shall now file a Combined Reply in support of its Motion and Opposition to any Cross−Motion by 8/09/2013; Plaintiff shall now file a Reply in support of any Cross−Motion by 8/23/2013. (ad) (Entered: 06/14/2013)
10 MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Text of Proposed Order)(Sandberg, Justin) (Entered: 06/28/2013)
11 Cross MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Statement of Facts, # 4 Exhibit, # 5 Text of Proposed Order)(McCall, Ginger) (Entered: 07/26/2013)
12 Memorandum in opposition to re 10 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Statement of Facts, # 4 Exhibit, # 5 Text of Proposed Order)(McCall, Ginger) (Entered: 07/26/2013)
13 Memorandum in opposition to re 11 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Sandberg, Justin) (Entered: 08/09/2013)
14 REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Sandberg, Justin) (Entered: 08/09/2013)
15 NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 08/22/2013)
16 REPLY to opposition to motion re 11 Cross MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 08/23/2013)
17 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 08/26/2013)
18 ORDER: As set forth in the accompanying Memorandum Opinion, the Court ORDERS that: (1) Defendant's 10 Motion for Summary Judgment is DENIED; (2) Plaintiff's 11 Motion for Summary Judgment is GRANTED; (3) This Judgment is STAYED for 30 days; and (4) Should DHS notice an appeal by December 12, 2013, the stay shall remain in effect until the Court of Appeals rules on such appeal. Signed by Judge James E. Boasberg on 11/12/13. (lcjeb1, ) (Entered: 11/12/2013)
19 MEMORANDUM OPINION re 18 Order. Signed by Judge James E. Boasberg on 11/12/13. (lcjeb1) (Entered: 11/12/2013)
20 Unopposed MOTION Extension of Stay of Judgment by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Sandberg, Justin) (Entered: 11/22/2013)
MINUTE ORDER granting Defendant's 20 Unopposed Motion for Stay of Judgment: The Court ORDERS that the judgment is stayed until January 13, 2014. If Defendant files a notice of appeal on or before January 13, 2014, the stay shall remain in effect until the Court of Appeals rules on that appeal. Signed by Judge James E. Boasberg on

Case: 1:13-cv-260 As of: 12/11/2016 01:35 PM EST 4 of 5

01/13/2014 01/13/2014 01/23/2014 06/01/2015
06/02/2015 06/02/2015 06/18/2015 06/22/2015
06/22/2015 07/06/2015 07/10/2015
04/05/2016 04/05/2016 04/05/2016

11/22/13. (lcjeb1) (Entered: 11/22/2013)
21 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 18 Order on Motion for Summary Judgment, 19 Memorandum & Opinion by DEPARTMENT OF HOMELAND SECURITY. Fee Status: No Fee Paid. Parties have been notified. (Sandberg, Justin) (Entered: 01/13/2014)
22 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 21 Notice of Appeal to DC Circuit Court. (td, ) (Entered: 01/13/2014)
USCA Case Number 14−5013 for 21 Notice of Appeal to DC Circuit Court filed by DEPARTMENT OF HOMELAND SECURITY. (td, ) (Entered: 01/27/2014)
23 MANDATE of USCA (certified copy) as to 21 Notice of Appeal to DC Circuit Court filed by DEPARTMENT OF HOMELAND SECURITY. ORDERED and ADJUDGED that the District Court's grant of summary judgment appealed from in this cause is hereby reversed and the case is remanded for the district court to determine whether any reasonably segregable portions of SOP 303 can be disclosed, in accordance with the opinion of the court filed herein this date. USCA Case Number 14−5013. (Attachments: # 1 USCA Opinion)(rd) (Entered: 06/02/2015)
MINUTE ORDER: Upon issuance of the Mandate from the Court of Appeals, this Court ORDERS that the parties shall appear for a status hearing on June 22, 2015, at 9:30 a.m. in Courtroom 19. Signed by Judge James E. Boasberg on 6/2/15. (lcjeb1) (Entered: 06/02/2015)
Set/Reset Hearing: A Status Conference is set for 6/22/2015, at 9:30 AM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 06/02/2015)
24 NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Entered: 06/18/2015)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that Defendant shall by July 6, 2015, file a Notice regarding any further release of the document at issue. In addition, Defendant shall provide to the Court in camera both a clean and redacted version of the document. Signed by Judge James E. Boasberg on 6/22/15. (lcjeb1) (Entered: 06/22/2015)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 6/22/2015. (Defendant shall by July 6, 2015, file a Notice regarding any further release of the document at issue). (Court Reporter Lisa Griffith) (ad) (Entered: 06/22/2015)
25 NOTICE of In Camera Filing by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit SOP 303 Redacted)(Sandberg, Justin) (Entered: 07/06/2015)
MINUTE ORDER: The Court has reviewed in camera the submissions by the Department of Homeland Security and believes that DHS's segregation decisions have been liberal and erred on the side of disclosure. As a result, consistent with the decision by the Court of Appeals, this Court does not find that any further information on these pages must be released. The Court ORDERS, accordingly, that judgment is ENTERED in favor of Defendant. Signed by Judge James E. Boasberg on 07/10/15. (lcjeb2) (Entered: 07/10/2015)
26 NOTICE of Appearance by Thailam John Tran on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Tran, Thailam) (Entered: 04/05/2016)
27 Joint MOTION for Briefing Schedule by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order)(Tran, Thailam) (Entered: 04/05/2016)
MINUTE ORDER granting Joint 27 Motion for Briefing Schedule. The Court ORDERS that EPIC's motion for attorneys' fees and costs shall be filed by no later than April 25, 2016; DHS's opposition shall be filed by no later than May 27, 2016; and EPIC's reply shall be filed by no later than June 10, 2016. Signed by Judge James E. Boasberg on 04/05/2016. (lcjeb2) (Entered: 04/05/2016)

Case: 1:13-cv-260 As of: 12/11/2016 01:35 PM EST 5 of 5

04/06/2016 04/25/2016
05/26/2016 05/27/2016 05/27/2016 06/03/2016 06/17/2016 07/18/2016 07/18/2016

Set/Reset Deadlines: EPIC's motion for attorneys' fees and costs shall be filed by no later than 4/25/2016; DHS's opposition shall be filed by no later than 5/27/2016; and EPIC's reply shall be filed by no later than 6/10/2016. (ad) (Entered: 04/06/2016)
28 MOTION for Attorney Fees by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Declaration of T. John Tran, # 2 Exhibit Kavanaugh Declaration, # 3 Exhibit 2014 Real Rate Report, # 4 Exhibit Westlaw Billing Report, # 5 Exhibit Westlaw Billing Report, # 6 Exhibit LSI Laffey Matrix, # 7 Exhibit USAO Laffey Matrix, # 8 Exhibit Billing Records, # 9 Affidavit of M. Rotenberg, # 10 Affidavit of A. Butler, # 11 Affidavit of G. McCall, # 12 Affidavit of D. Jacobs, # 13 Affidavit of J. Horwitz, # 14 Affidavit of D. Husband, # 15 Affidavit of T. Tran, # 16 Affidavit of A. Thomson, # 17 Text of Proposed Order)(Tran, Thailam) (Entered: 04/25/2016)
29 Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION for Attorney Fees by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Sandberg, Justin) (Entered: 05/26/2016)
MINUTE ORDER granting Defendant's 29 Consent Motion for Extension of Time to File Opposition to Plaintiff's Motion for Fees and Costs. The Court ORDERS that Defendant shall file it Opposition by no later than June 3, 2016, and Plaintiff shall file its Reply, if any, by no later than June 17, 2016. Signed by Judge James E. Boasberg on 05/27/2016. (lcjeb2) (Entered: 05/27/2016)
Set/Reset Deadlines: Defendant's opposition to motion for fees and costs due by 6/3/2016; Plaintiff's Reply due by 6/17/2016. (tg) Modified on 5/27/2016 (tg). (Entered: 05/27/2016)
30 RESPONSE re 28 MOTION for Attorney Fees filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Sandberg, Justin) (Entered: 06/03/2016)
31 REPLY to opposition to motion re 28 MOTION for Attorney Fees filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Declaration of T. John Tran, # 2 Exhibit Supplemental Billing Records, # 3 Affidavit of M. Rotenberg, # 4 Affidavit of A. Butler, # 5 Affidavit of T. Tran, # 6 Affidavit of A. Thomson)(Tran, Thailam) (Entered: 06/17/2016)
32 ORDER GRANTING IN PART and DENYING IN PART 28 Plaintiff's Motion for Attorney Fees and Costs. Signed by Judge James E. Boasberg on 7/18/16. (lcjeb2) (Entered: 07/18/2016)
33 Memorandum Opinion re 32 Order on Plaintiff's Motion for Attorney Fees and Costs. Signed by Judge James E. Boasberg on 7/18/16. (lcjeb2) (Entered: 07/18/2016)


[CONTENT] February 27, 2013 | the Electronic Privacy Information Center | EPIC | the Department of Homeland Security | EPIC | Freedom of Information Act | FOIA ||| FOIA | July 10, 2012 | DHS ||| EPIC | DHS | FOIA ||| EPIC | DHS | DHS ||| EPIC ||| FOIA | 303 | DHS Issue Review < ||| July 11, 2011 | Bay Area Rapid Transit | BART | San Francisco |||  ||| BART ||| second | August 12, 2011 | BART | 303 | three hours ||| EPIC | FOIA | August 21 | 2012 | EPIC | DHS ||| EPIC | September 13, 2012 ||| FOIA | 20 days ||| May 20, 2013 | James E. Boasberg | 303 ||| June 28, 2013 | DHS | FOIA | 6 | DHS ||| DHS | EPIC ||| November 12, 2013 | James E. Boasberg | EPIC | DHS | 7(E | the DC Circuit Court ||| June 1, 2015 | The DC Circuit Court | 303 ||| July 10, 2015 | DHS | 303 | Boasberg | the court of appeals' | DHS | DHS ||| DHS | EPIC ||| July 18, 2016 | 20,145.04 |||  [SUMMARY] On February 27, 2013, the Electronic Privacy Information Center (EPIC) filed this lawsuit against the Department of Homeland Security (DHS) for failure to release information in response to EPIC's Freedom of Information Act (FOIA). The FOIA request was filed on July 10, 2012 regarding the disclosure of a communication shutdown procedure approved by DHS. EPIC claimed that DHS's failure to respond to an administrative appeal violated the statutory deadline imposed by FOIA. Additionally, EPIC claims that DHS failed to make a reasonable effort to search for the documents requested and that DHS was unlawfully withholding said documents. The EPIC requested injunctive relief from the court to compel immediate disclosure of the relevant records.

The FOIA request was for disclosure of records related to a communication shutdown procedure called Standard Operating Procedure (SOP) 303 described in the <a href="https://www.dhs.gov/sites/default/files/publications/2006-2007%20NSTAC%20Issue%20Review_0.pdf">2006-07 DHS Issue Review </a> as codifying a "shutdown and restoration process for use by commercial and private wireless networks during national crises" to prevent the remote detonation of bombs. 

On July 11, 2011 a Bay Area Rapid Transit (BART) officer in San Francisco shot and killed a homeless man. He later alleged that the homeless man had a knife and that the officer had shot him in self defense. This resulted in a major protest against BART. The second protest on August 12, 2011 was cut short when BART supposedly used the SOP 303 communication shutdown procedure to shut off all cellular service in several of its transit stations for three hours.  

DHS responded to EPIC's FOIA request on August 21, 2012 notifying EPIC that DHS was unable to locate or identify the records requested. EPIC administratively appealed this response on September 13, 2012. DHS, which was statutorily required by FOIA to respond to an administrative appeal within 20 days, did not submit a timely response. 

On May 20, 2013, Judge James E. Boasberg ordered the disclosure of any segregable portions of SOP 303. On June 28, 2013, DHS disclosed the document, but withheld portions under FOIA exemptions 6 and 7(C), 7(E), and 7(D) on the grounds that they included personal information of DHS officials, techniques and procedures for law enforcement investigations or prosecutions, or endangered the life of any individual. At the same time, DHS moved for summary judgment and EPIC made a cross-motion for summary judgment. On November 12, 2013 Judge James E. Boasberg granted EPIC's motion for summary judgment on the grounds that DHS's invocation of exemptions 7(E) and 7(D) were improper, and stayed the order pending the defendant's appeal to the DC Circuit Court. 

On June 1, 2015, The DC Circuit Court reversed and remanded the case to the district court to determine whether any segregable portions of SOP 303 could be disclosed. 

On July 10, 2015, DHS submitted a redacted version of SOP 303 to Judge Boasberg, who decided consistent with the court of appeals' decision that DHS did not need to disclose any further information and entered judgment in favor DHS. 

Afterwards, the parties litigated regarding DHS's payment of EPIC's attorney's fees. On July 18, 2016, the judge granted in part the motion for attorney's fees totaling $20,145.04.

The case is now closed. 

	