Friedman v. U.S. Secret Serv., No. 06-2125, 2017 WL 4797785 (D.D.C. Oct. 20, 2017) (Leon, J.)

Friedman v. U.S. Secret Serv., No. 06-2125, 2017 WL 4797785 (D.D.C. Oct. 20, 2017) (Leon, J.)

Re:  Request for records concerning use of "'directed energy devices or systems'"

Disposition:  Granting in part and denying in part defendant's second renewed motion for summary judgment; denying plaintiff's motion for order related to defendant's misuse of (c)(1) Exclusion, motion for in camera review of records, and motion for reconsideration

• Exemption 2:  The court relates that "[i]t appears . . . that the Air Force maintains its reliance on Exemption 2 to withhold 'the e-mail addresses, login names, and passwords for military computer systems appearing in the records.'"  "This position is untenable in light of the Supreme Court's decision in Milner v. Department of the Navy[.]"
   
• Exemption 4:  The court relates that "[p]laintiff fails to even mention defendant's reliance on Exemption 4, and this Court thus treats defendant's argument on this matter as conceded."  "Insofar as the [submitter] records list the company's government clients, describe the types of directed energy weapons that the clients had purchased or in which they had shown an interest, . . . and depict 'proprietary applications and scenarios' of [the submitter's] technology, . . . the Court concludes that the information withheld includes trade secrets."  "And in light of [the submitter's] stated commercial interest in the development and sale of its . . . technology, the Secret Service properly withholds the information under Exemption 4."
   
• Exemption 6:  "Based on the Court's review of the supporting declarations, and absent any substantive objection from plaintiff, the Court concludes that [defendants] properly have withheld information under Exemption 6."  The court relates that defendants withheld "'names and [other PII] of non-governmental personnel, namely, contractor and research laboratory employees.'"
   
• Exemption 7, Threshold:  "[T]he declarations demonstrate that the relevant records were compiled for law enforcement purposes, and the records therefore fall within the scope of Exemption 7."  The court explains that "the records 'were compiled . . . in the course of its research, testing, and evaluations of technologies that could be used to protect the safety of the President and other Secret Service protectees[.]'"
   
• Exemption 7(C):  "The Court concludes that the withholding of the identities of third parties mentioned in these law enforcement records is proper."  The court explains that "[t]he District of Columbia Circuit has held 'categorically that, unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure.'"  However, "[b]ecause defendant has not submitted a declaration to explain the decision of the United States Air Force to withhold information under Exemption 7(C), . . . defendant's motion will be denied in part without prejudice."
   
• Exemption 7(E):  "[T]he Court concludes that reliance on Exemption 7(E) is appropriate."  The court relates that "[t]he declarants state that these documents contain 'specific information on security systems used by the Secret Service' in protecting the President and other designated individuals, and 'information regarding technologies which could potentially thwart these measures.'"  "The declarants further assert that '[p]ublic disclosure of information regarding the details of these security systems and technologies could nullify the future effectiveness of these protective measures' and thus 'impede the Secret Service's efforts to protect the President, the Vice President, and other . . . protectees in the future.'"
   
• Exemption 7(F):  "The Court notes that, for purposes of Exemption 7(F), '[d]isclosure need not definitely endanger life or physical safety; a reasonable expectation of endangerment suffices.'"  "The Secret Service has satisfied that requirement by demonstrating that disclosure of the security-related information at issue could endanger the safety of its protectees."  "Its reliance on Exemption 7(F) is therefore proper."
   
• Exclusions:  In response to "Plaintiff's 'Motion for Order Related to Agency's Misuse of FOIA (c)(1) Exclusion,'" the court finds that "Defendant does not invoke the (c)(1) exclusion . . . and the Court accordingly denies plaintiff's motion."
   
• Litigation Considerations, In Camera Inspection:  The court finds that "[t]his is not a case where the agencies' affidavits are insufficiently detailed, where such affidavits are contradicted in the record, or where there is evidence of agency bad faith."  "Indeed, 'the agencies' affidavits standing alone were sufficiently specific to place the challenged documents within the exemption categories,' rendering in camera review unnecessary."