Elec. Privacy Info. Center v. DHS, No. 14-5013, 2015 WL 525183 (D.C. Cir. Feb. 10, 2015) (Rogers, J.)
Re: Request for protocol for shutting down wireless networks during critical emergencies, SOP 303
Disposition: Reversing and remanding district court's grant of plaintiff's motion for summary judgment
- Exemption 7, Threshold: The Court of Appeals for the District of Columbia Circuit finds that "SOP 303 was created to prevent crime and keep people safe, which qualify as law enforcement purposes" and, therefore, "meets Exemption 7's threshold test."
- Exemption 7(F): The Court of Appeals for the District of Columbia Circuit "hold[s] that the Department permissibly withheld much, if not all of SOP 303, because its release . . . could reasonably be expected to endanger individuals' lives or physical safety, and we reverse the grant of summary judgment." The court relates that "the Department maintains that disclosure of SOP 303 . . . '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.'" "[Plaintiff] maintains, however, that Exemption 7(F) requires the Department to identify with some specificity the individuals who would be endangered by SOP 303's disclosure." The court reasons that "the Department does not point to a 'particularized threat to a discrete population,' . . . 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." The court finds that "[t]he language of Exemption 7(F), which concerns danger to the life or physical safety of any individual, suggests Congress contemplated 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 . . . , but the critical emergency itself provides a limit." Therefore, court finds that "[r]elease of SOP 303 . . . poses a concrete and non-speculative danger to numerous albeit unspecified individuals . . . and the Department thereby asserted a direct nexus between disclosure and a reasonable possibility of personal harm."
Additionally, in response to plaintiff's argument, the court holds that "the possibility of classification and the concomitant protection from disclosure provided by Exemption 1 do not render Exemption 7(F) superfluous."