Pub. Employees for Envtl. Responsibility v. U.S. Section, Int'l Boundary and Water Comm'n, No. 12-5158, 2014 WL 228650 (D.C. Cir. Jan. 22, 2014) (Kavanaugh, C. J.)

Wednesday, January 22, 2014
Re: Request for records concerning two dams located on border between United States and Mexico Disposition: Vacating and remanding district court's grant of defendant's motion for summary judgment in part; affirming district court's grant of defendant's motion for summary judgment in part
  • Litigation Considerations, Declaration:  The D.C. Circuit "agree[s] with the District Court that [plaintiff's] allegations do not undermine the reliability of the agency's affidavits."  The court finds that "an agency's failure to turn up every responsive document in an initial search is not necessarily evidence of bad faith."  Additionally, the court finds that plaintiff's focus "on picayune differences in the agency's various submissions . . . totter between the trivial and the speculative."
  • Exemption 5, Deliberative Process:  The D.C. Circuit "vacate[s] the District Court's judgment as to Exemption 5 and the expert report and remand[s] for the District Court to determine whether officials of the Mexican agency assisted in preparing the expert report."  The court considers defendant's argument that "even if [plaintiff] is correct that the Mexican National Water Commission assisted in preparing the expert report, the Mexican agency did so in order to advise the U.S. Section, not to advance the Mexican agency's own interests" and, therefore, "the expert report falls within the consultant corollary."  The court states that "[t]his is a legal issue of first impression . . . [a]nd it would be unnecessary to resolve it if officials of the Mexican National Water Commission did not actually assist in preparing the expert report."
  • Exemption 7, Threshold:  The court "conclude[s] that the emergency action plans and the inundation maps were 'compiled for law enforcement purposes,'" and therefore meet "the threshold requirement for application of Exemption 7."  The court explains that "[t]he U.S. Section does perform a law enforcement function."  "The U.S. Section is a part of the Interagency Committee on Dam Safety, which has the statutory duty to establish programs and policies to 'enhance dam safety for the protection of human life and property.'"  This duty, the court explains "necessarily encompasses security and prevention of criminal or terrorist attacks."
  • Exemption 7(E):  The court "uphold[s] the U.S. Section's invocation of Exemption 7(E) as to the emergency action plans."  The court finds that "[t]he emergency action plans contain guidelines that inform emergency personnel how to manage a dam failure at Amistad Dam or Falcon Dam from 'event detection to termination.'"  The court concludes by stating that "because such investigations may constitute 'law enforcement investigations' when there is suspicion of criminal sabotage or terrorism . . . the emergency action plans contain guidelines 'for law enforcement investigations or prosecutions.'"
  • Exemption 7(F):  The court finds that "the inundation maps fall comfortably within Exemption 7(F)."  The court explains that "disclosing the maps would give anyone seeking to cause harm 'the ability to deduce the zones and populations most affected by dam failure.'"
Court of Appeals
Exemption 5
Exemption 7
Exemption 7E
Exemption 7F
Litigation Considerations
Updated August 6, 2014