Elec. Privacy Info. Ctr. v. DEA, No. 14-317, 2016 U.S. Dist. LEXIS 82351 (D.D.C. June 24, 2016) (Sullivan, J.)

Elec. Privacy Info. Ctr. v. DEA, No. 14-317, 2016 U.S. Dist. LEXIS 82351 (D.D.C. June 24, 2016) (Sullivan, J.)

Re: Request for government's analysis of legal and privacy issues related to Hemisphere, program that grants law enforcement officials access to telephone database

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying in part and holding in abeyance in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "DEA's search was reasonable."  The court finds that "[plaintiff's] argument that it 'is difficult to believe that such a far-reaching, invasive program would not have triggered some privacy analysis or discussion that would be responsive to the third prong of [plaintiff's] request' does not support a finding that the DEA's search was inadequate."  The court explains that "based on the legal standard for what constitutes a reasonable search, arguments that certain documents 'should' or 'must' exist are consistently rejected."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[defendant's] Declaration meets the requirements of Vaughn."  The court explains that "[defendant's] Declaration identifies the exemptions relied upon and describes the documents withheld under each exemption."  Additionally, "[t]he nature of each document is described in the text of [defendant's] declaration, and each redaction is labeled with the relevant exemption."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[a] draft memorandum was properly withheld under FOIA Exemption 5."  The court first rejects plaintiff's argument that, "'[w]hen an agency uses the deliberative process privilege to withhold draft documents under Exemption 5, it must identify a corresponding final decision.'"  The court explains that "[plaintiff's] insistence that the draft memorandum here be treated as a final policy . . . ignores the reality of how government policies evolve."  The court then finds that "the memorandum was prepared by an attorney in the DEA's office of Chief Counsel for senior DEA management" and "the memorandum includes comments by the attorney who prepared the document, reflecting the deliberative posture of the memorandum."
   
• Exemption 5, Attorney Work-Product:  "The Court . . . concludes that the email at issue is protected by the work product doctrine because it was prepared in anticipation of litigation."  The court first notes that, "[a]lthough there is sufficient evidence in the record to conclude that [plaintiff] has waived any argument regarding the application of the work-product doctrine to the email in question because [plaintiff] did not contest the application of the work-product doctrine to the email message in its first summary judgment brief, . . . the Court is also satisfied that the email is in fact protected by the privilege."  The court agrees with defendant that "the email is 'covered by the attorney work-product doctrine because it was prepared by a DOJ attorney in anticipation of litigation relating to the use of Hemisphere in law enforcement.'"  The court also finds that "the nature of the Hemisphere program, which clearly implicates controversial law-enforcement techniques and privacy rights as evidenced by this lawsuit, satisfies the Court that it is objectively reasonable for the government agencies involved to hold a subjective belief that litigation was and is a real possibility."
   
• Exemption 7(D):  The court holds that "DEA must either disclose the relevant information withheld under Exemption 7(D), supplement the record with additional affidavits and authority justifying its withholding, or produce documents for the Court's in camera review."  First, "[t]he Court acknowledges the sensitive nature of the information at issue, but agrees with [plaintiff] that the government has failed to meet its burden of showing that an explicit assurance of confidentiality was given to the private companies involved with Hemisphere."  The court "order[s DEA] to submit the relevant documents to the Court for in camera review, or to supplement the record with a declaration from a DEA employee who has first-hand knowledge of the explicit assurance of confidentiality given to the private companies."  Similarly, "[t]he Court agrees with [plaintiff] that the DEA has failed to provide the necessary details to support a finding that confidentiality was implied to private companies assisting with the operation of Hemisphere."  The court explains that "DEA cites no authority for the proposition that potential retaliation against a private company is sufficient to justify a finding of implied confidentiality."
   
• Exemption 7(E):  First, the court holds that "the record in this case does not, at this time, support a finding that disclosure of the names of the private companies cooperating with the government in the operation of Hemisphere will assist individuals in thwarting the DEA, or create a risk of circumvention of the law."  The court explains that "[t]he DEA has offered no evidence or explanation for its claim that Hemisphere is a 'single' technique and procedure."  Additionally, the court finds that "the cooperation of major telecommunication companies with Hemisphere has been widely reported by various news outlets[.]"  Also, the court finds that "[t]he DEA has failed to logically demonstrate how release of the private corporation's names would assist drug traffickers seeking to evade law enforcement."  Second, the court finds that "DEA's conclusory assertion that publication of ["documents that reveal how Hemisphere secures cooperation from other entities"] could 'reasonably be expected to lead to disruption of the means of securing cooperation' does not allow the Court to assess whether the documents deserve protection under 7(E)."  "Because the DEA insists that 'a more specific description of this potential risk would entail revealing the withheld information,' the DEA is ordered to produce the documents withheld under this rationale for in camera review."  Third, the court holds that "[d]efendant's Motion for Summary Judgment pertaining to [the withholding of] the names of other agencies that have access to the Hemisphere data is denied without prejudice."  The court finds that "DEA's argument that disclosure of other agencies with access to Hemisphere is equivalent to the disclosure of specific investigatory FBI units and locations is not persuasive."  Additionally, "no evidence has been presented to the Court to justify the DEA's conclusory argument that 'because every law enforcement agency has its own respective focus and sphere of authority, knowing which particular law enforcement agencies have access to Hemisphere would help criminals tailor their activities to avoid apprehension.'"