Elec. Privacy Info. Ctr. v. DEA, No. 14-317, 2019 WL 3592656 (D.D.C. Aug. 6, 2019) (Sullivan, J.)

Elec. Privacy Info. Ctr. v. DEA, No. 14-317, 2019 WL 3592656 (D.D.C. Aug. 6, 2019) (Sullivan, J.)

Re:  Request for records concerning analysis of legal and privacy issues related to Hemisphere Project, program utilized by multiple government agencies that collects daily data on telephone calls

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, In Camera Inspection:  "The Court is satisfied that the DEA's use of [its] declaration – submitted in camera and ex parte – was appropriate in this case."  "First, a redacted version of the . . . declaration was filed on the public docket, and this redacted version explains the justifications for why the DEA submitted it in camera."  "The declaration explains that public disclosure would reveal non-public sensitive DEA information not related to the FOIA request."  "Second, the bulk of the redacted information relates to the exhibits this Court ordered the DEA to file in camera because the only way the Court could ascertain whether the exemption was justified was by reviewing the documents themselves."  "However, the DEA's notice that it has partially withdrawn its motion for summary judgment and its subsequent filing of revised documents in connection with that notice has now rendered public some of the sensitive information in the declaration."  "Although the DEA's motion and subsequent disclosure of revised documents arguably meet the requirement that as much of the in camera submission as possible be made available to the adverse party, in an abundance of caution, the Court will order the DEA to un-redact portions of the affidavit that are no longer sensitive in light of its new disclosures to [plaintiff]."
   
• Exemption 7(E):  "The Court first finds that, although a close question, the DEA has sufficiently demonstrated that release of the names of the agencies that have access to Hemisphere would reveal techniques, procedures, or guidelines for law enforcement prosecutions as to those agencies."  The court relates that, "[i]n its supplemental memoranda, the DEA has explained that the use of Hemisphere by the agencies other than the DEA has not been publicly confirmed, and to disclose such information would be disclosing the capabilities and limitations of certain agencies, specifically the agencies that do not use Hemisphere."  "In other words, producing a set list of which agencies use Hemisphere necessarily discloses that Hemisphere is a technique or procedure that the agency utilizes, which is information that is not publicly available."  Second, "[a]fter review of the declaration and the documents, the Court is satisfied that the DEA has supported its assertion that publication of these documents could 'reasonably be expected to lead to disruption of the means of securing cooperation' and therefore could reasonably be expected to risk circumvention of the law."  The court relates that "[defendant] explains that it could 'reasonably be expected that . . . the entities instrumental in the operation of Hemisphere would likely choose to discontinue their cooperation . . . [and] [t]his would risk making an important investigative tool unavailable.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court notes that "[t]he DEA has not addressed segregability in its supplemental filings; however, the Court has an independent obligation to determine whether the government has met its obligation under the statute."  "Upon review of [defendant's] Declaration, . . . explaining its process for segregability; the Court's in camera review of the contested documents; the released pages attached to the motion for summary judgment; and the revised released pages following the DEA's notice of partial withdrawal, the Court is satisfied that the government only withheld information that is exempt from disclosure and material 'inextricably intertwined with exempt portions.'"