Thursday, February 14, 2013
Re: Request for records concerning directed energy weapons or systems Disposition: Granting defendants' renewed motion for summary judgment in part with respect to the adequacy of the Secret Service's search for records and the determination to withhold certain information pursuant to Exemptions 1 and 5; denying defendants' motion without prejudice with regard to Exemptions 2, 4, 6, 7(C), and 7(E)
- Adequacy of Search: The court concludes that "[b]ased on the Secret Service's supporting declarations, absent a showing by plaintiff that the agency's declarations are not entitled to a presumption of good faith, the Court concludes that the searches were reasonably calculated to locate records respon[sive] to plaintiff's FOIA request." The Secret Service explained that it had searched for responsive records in its "Master Central Index . . . an online computer system used by all Secret Service field offices, protective divisions, and headquarters [that] is the central record keeping system for information on all Secret Service cases" and next "determined what Secret Service divisions would possess information" responsive to plaintiff's request and searched those divisions. The court rejects plaintiff's arguments that the Secret Service should have searched "the vehicles in which the DEWs [directed energy weapons] and DETs [directed energy technologies] are mounted or contained." The court declares that "[f]or purposes of the FOIA, the term 'records' does not include tangible objects. . . . Thus, vehicles and other equipment are not records under the FOIA, and the Secret Service was under no obligation to search for them or to search their contents. "
- Allegations of Bad Faith: The court finds that "[t]he Secret Service's declarations are accorded a presumption of good faith, and plaintiff's conjecture as to covert activity within the agency to prevent FOIA disclosures does not rebut the presumption." Plaintiff offered evidence that directed energy technology exists but the court states that "[p]roof that such weapons systems or technologies exist does not establish that the Secret Service maintains or unlawfully withholds records pertaining to these matters."
- Exemption 1: The court finds that the defendants properly invoked Exemption 1 to withhold various reports pertaining to security measures and countermeasures at the White House and other Secret Service protected facilities. The court holds that "the declarants reveal to the extent possible without revealing classified information that the four reports maintained by the Secret Service and the two reports referred to the Air Force fall within Exemption 1. An original classification authority has classified the information; the reports were located as a result of a search of Secret Service records; in each case the declarant avers that the information falls into one of the categories listed in § 1.4; and the disclosure of the information could reasonably be expected to result in damage to the national security, specifically, to the security of the White House, the national capital region, and other facilities protected by the Secret Service."
- In camera review: The court rejects plaintiff's request for in camera review. It notes that "the declarations do not merely recite the standard set forth in Exec. Order No. 13292, and they are not so vague or conclusory that plaintiff and the Court cannot determine whether Exemption 1 applies."
- Exemption 2: The court denies the Secret Service's use of Exemption 2 to withhold email addresses, login names, and passwords. Noting that "[t]he supporting declarations were prepared before Milner and therefore do not address whether the email addresses, login names and passwords are related solely to the agencies' internal personnel rules and practices," the court denies the motion. It "allow[s] the defendant an opportunity to reconsider its reliance on Exemption 2 in light of Milner."
- Exemption 4: The court defers consideration of the use of Exemption 4. It notes that records originated with a private corporation and that "[w]hile Raytheon [a private corporation] articulates a rationale for withholding information under Exemption 4 . . . the Secret Service offers no explanation of its own reasons for withholding information from Raytheon's records under any of the exemptions."
- Exemption 5: The court finds that evaluations of security matters prepared by a technical security employee for his supervisors as well as a PowerPoint presentation prepared by a DHS employee "intended to assist a program manager formulate thoughts around border and transportation security issues" were appropriately withheld under Exemption 5. Noting that the plaintiff did not object to this exemption, the court concludes that "[t]he supporting declarations reflect that evaluation prepared by a Secret Service employee and the powerpoint presentation prepared by the DHS employee are predecisional in nature and the declarants adequately explained the deliberative process for which each document was prepared."
- Exemption 6: The court holds that "[t]he defendants' supporting declarations have not adequately demonstrated that the information withheld under Exemption 6 is in a personnel, medical, or similar file within the scope of Exemption 6." The court notes that plaintiff did not seek information about a particular individual and that "information about third parties happens to have been found in the responsive records and does not appear to contain personal or intimate information about these parties. For example, the names of government employees and service members and their work telephone numbers are withheld. Such information ordinarily is not considered 'similar files' for purposes of Exemption 6."
- Exemption 7: The court also finds that it cannot conclude that information was properly withheld pursuant to Exemption 7. The court finds that "it appears that the Secret Services relies on its status as a law enforcement agency to withhold records that it deems 'of a research nature '. . . and thus may not be directly related to a law enforcement purpose." The court finds that the current record is not sufficient to establish that the records fall within Exemption 7. Likewise, the court finds that it is unable to conclude that DOJ and the Air Force properly asserted Exemption 7. The court opines that "[w]ithout a fuller description of the records at issue and more than a conclusory statement of its decision to withhold information, the DOJ fails to demonstrate that the information withheld falls within the scope of Exemption 7 generally or that it is exempt from disclosure under Exemption 7(E) specifically."
Adequacy of Search
Allegations of Bad Faith
In Camera Review
Updated August 6, 2014