Elec. Privacy Info. Ctr. v. DOJ, No. 13-1961, 2017 WL 5176309 (D.D.C. Nov. 7, 2017) (Jackson, J.)

Elec. Privacy Info. Ctr. v. DOJ, No. 13-1961, 2017 WL 5176309 (D.D.C. Nov. 7, 2017) (Jackson, J.)

Re:  Request for various records concerning use of pen registers and trap and trace devices obtained under the FISA

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

• Exemption 3:  "[T]he Court has conducted an in camera review of the relevant materials, and it concurs with DOJ's contention that FOIA Exemption 3 was properly invoked with respect to the Westlaw printouts and the redacted portions of the Congressional reports that [plaintiff] is challenging in this action."  The court relates that "the government has pointed to three separate statutes – Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1); Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605; and 18 U.S.C. § 798 – and asserts that each qualifies as a withholding statute for the purpose of Exemption 3."  The court finds that "[i]t is well established that each of the statutes that the FBI and the NSA relies upon qualifies as an Exemption 3 withholding statute[.]"  "In light of its own in camera review and the submitted declarations, the Court readily finds that the material falls within the ambit of each cited statute – specifically, the withheld information pertains to intelligence sources and methods and NSA activities within the scope of 50 U.S.C. §§ 3024(i)(1) and 3605, and also contains classified information concerning communication activities within the ambit of 18 U.S.C § 798."
  
  The court then turns to plaintiff's arguments and relates that "[plaintiff] does vigorously maintain that DOJ has not followed the right procedure for establishing the applicability of Exemption 3 with respect to the withholdings at issue."  "Specifically, [plaintiff] maintains that a division of DOJ – the NSD – 'created and controls the records at issue' . . . yet there is no declaration from NSD to justify any of the withholdings; rather, the only declarations the government has provided are from the FBI and NSA."  "[Plaintiff] further maintains that DOJ has asserted Exemption 3 belatedly and in bad faith, and that DOJ in fact waived the exemption by not asserting it during the prior round of summary judgment briefing in this matter."  "The Court will address this last alleged procedural deficiency first: given the convoluted procedural history of the instant case, [plaintiff's] argument that the government has waived the right to rely on Exemption 3 by failing to invoke that exemption in its earlier Vaughn Index is not well-founded."  "The Court does not perceive the government as having acted in bad faith, nor does it view the government's filings as providing post-hoc rationalizations for withholdings already made. Rather, the document-production process is a fluid one at the district-court level, and it often includes contemporaneous review and continuous production determinations by agency-defendants."  "[Plaintiff's] contention that DOJ is not the proper agency to invoke Exemption 3 . . . and that its reliance on affidavits from NSA and the FBI is improper . . . fares no better."  "The record clearly reveals that DOJ followed a referral process when it responded to [plaintiff's] FOIA request, consistent with the agency's regulations."  "[Plaintiff] also fails to explain, or support, its suggestion that an agency's compliance with its own referral regulations constitutes 'bad faith[.]'"
   
• Exemption 1:  The court holds that "[i]n this case, the invocation of Exemption 1 is proper, because the government has both pointed to an applicable Executive Order and established through its declarations that the withheld material is properly classified under the Order's terms."  First, "based on its review of both the unredacted SARs and the classified declarations, this Court finds that the government has established that the material it redacted from the SARs is properly classified, . . . and therefore can be withheld under Exemption 1."  Specifically, the court finds that "[w]ithout even considering the declarations, it is eminently logical that publicly disclosing the strengths, weaknesses, and/or changes in the FISC's own processes, or the limits of the FISC's jurisdiction, presents a risk that potential targets will alter their behavior to account for the disclosed practices and/or limitations."  Second, regarding the Westlaw printouts, the court finds that "[a]s with the SARs, there is no question that (1) the government relies upon an Executive order that permits it to classify national security information . . . thereby satisfying the first factor; (2) [defendant's declarant] has the requisite classification authority and the government controls the material . . . which satisfies prong two; and (3) the printouts pertain to the FBI's intelligence methods and activities . . . which satisfies the third prong of the applicable framework."  And regarding the harm at issue, "[the] Court finds that the government's explanation of the harm that might result from release of the Westlaw printouts, and how such a disclosure could reveal national security information that is not evident from looking at the documents in isolation, is reasonable and sufficient to support its invocation of Exemption 1."  "[T]he Westlaw printouts and the main brief to which they are attached are rightfully construed as a single document, and that disclosure of the attachments would elucidate the substance of the main (undeniably classified) document, such that the government is entitled to withhold the attachments themselves."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that "[plaintiff's] more pointed assertion that at least some portion of the Westlaw printouts themselves should have been released on segregability grounds . . . is . . . misguided, because release of any portion of a Westlaw document carries with it the reasonable risk that anyone with access to public electronic databases such as Lexis and Westlaw could proceed to search for the released language and thereby locate a full copy of the document the government seeks to protect."  "As for the SARS, this Court has conducted a careful in camera review of the information that the government has withheld as well as its classified supplemental declarations, and it finds that the government has satisfied its obligation 'of demonstrating that no reasonably segregable material exists in the withheld documents[.]'"
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[its] in camera review revealed certain inconsistencies in the redactions that the government must address."  "The Court will provide the government with one final opportunity to support the[se] withholdings . . . and it will require supplemental submissions[.]"