upholding 7(F) withholding of inundation maps for similar reasons as those in Living Rivers
How later courts described this case
- upholding 7(F) withholding of inundation maps for similar reasons as those in Living Rivers
Written by the judges who cited it.
The opinion
1
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF COLUMBIA
8
9
PUBLIC EMPLOYEES FOR ENVIRONMENTAL
10
RESPONSIBILITY, No. 1:11-cv-261(BJR)
11
Plaintiff, ORDER GRANTING DEFENDANT’S
12
MOTION FOR SUMMARY JUDGMENT
13 v. AND DENYING PLAINTIFF’S CROSS
MOTION FOR SUMMARY JUDGMENT
14 UNITED STATES SECTION INTERNATIONAL
15 BOUNDARY AND WATER COMMISSION,
16
U.S. -MEXICO,
17
18
Defendant.
19
20
21 This Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., case comes before
22 the court on cross motions for summary judgment. Plaintiff, Public Employees for
23 Environmental Responsibility (“PEER”), filed this action against Defendant, United States
24 Section, International Boundary and Water Commission, U.S.-Mexico (“USIBWC”), under the
25
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., as amended, and the
ORDER-1
Administrative Procedures Act (“APA”), 5 U.S.C. § 701, challenging the agency’s response to
1
Plaintiff‘s August 10, 2010 FOIA request. Defendant USIBWC filed a Motion for Summary
2
3 Judgment (“Defendant’s Mot.”) (Dkt. No. 6). Plaintiff responded with a Cross Motion for
4 Summary Judgment and Opposition to Defendant’s motion (“Plaintiff’s Cross Mot.”) (Dkt. No.
5 8). Defendant filed its opposition to the Plaintiff’s cross motion and reply in support of its
6
Motion for Summary Judgment (“Defendant’s Opp./Reply”) (Dkt. No. 10). Plaintiff then filed a
7
reply in support of its Cross Motion (“Plaintiff’s Reply”) (Dkt. No. 13) and a Notice of Errata
8
(Dkt. No. 14). These motions are ripe for resolution. For the reasons set forth below, the court
9
10 hereby grants Defendant’s Motion for Summary Judgment and denies Plaintiff’s Cross Motion
11 for Summary Judgment.
12 I. FACTUAL AND PROCEDURAL BACKGROUND
13 Plaintiff PEER is a non-profit organization engaging in research, education and litigation
14
with the stated goal of promoting public understanding of environmental issues of public interest.
15
Defendant USIBWC is a federal government agency and the U.S. component of the International
16
Boundary and Water Commission (“IBWC”), which applies the boundary and water treaties of
17
18 the United States and Mexico and settles differences that may arise in their application. This case
19 involves a request for certain documents related to the safety of dams on the Rio Grande river.
20 By letter dated August 10, 2010, PEER submitted a FOIA request to USIBWC seeking
21
the following documents:
22
(1) A copy of the November 2009 report issued by a panel of technical advisers
23 regarding the condition of Amistad Dam and plan of action;
24 (2) All emails and documents that relate in any way to the November 2009 report;
25
ORDER-2
(3) Current inundation maps and emergency action plans for areas downstream of
1 Falcon Dam and Amistad Dam;
2
(4) Any and all emails and documents regarding plans or decisions to maintain water
3 storage at or near full conservation levels in Falcon and Amistad dams at any time
during 2010;
4
(5) Any and all emails and documents regarding plans or decisions to release water
5 from Falcon and Amistad dams at any time during 2010;
6
(6) Any and all geotechinical reports on the Presidio levee prepared since 2006;
7
(7) Any and all emails and documents dated on or after January 1, 2009 that relate in
8 any way to geotechnical reports on the Presidio levee; and
9 (8) Any and all emails and documents dated on or after January 1, 2009 that relate in
10 any way to demolition and/or reconstruction of any levees located in or adjacent
to Canutillo and Mesilla.
11
On September 28, 2010, the USIBWC responded by letter to PEER’s FOIA request.
12
First, with respect to (1) and (2), the USIBWC informed PEER that it was unable to locate a
13
14 November 2009 report as referenced in the request, or any emails or documents relating to such a
15 report. Next, with respect to (3), the agency stated that it located two responsive documents but
16 that it withheld both pursuant to FOIA pursuant to Exemption 5 1 on the grounds that each
17 document was a draft protected by the deliberative process privilege. In response to (4), the
18
agency explained that it located responsive documents and released all but two, again asserting
19
Exemption 5. Finally, with respect to the rest of PEER’s requests (5)-(8), above, the agency
20
located and released responsive documents. The USIBWC provided PEER with 1,492 pages of
21
22 information responsive to its request, and withheld 383 pages.
23
24 1
FOIA requires federal agencies to disclose records upon request unless the records fall within one or more
25 enumerated exemptions. Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7 (2001); see 5
U.S.C. § 552.
ORDER-3
On October 15, 2010, PEER appealed the agency’s response to its FOIA request.
1
Specifically, PEER challenged the USIBWC’s failure to provide the following:
2
3 (1) A copy of the November 2009 report issued by a panel of technical advisers
regarding the condition of Amistad Dam and plan of action;
4
(2) All emails and documents that relate in any way to the November 2009 report;
5
(3) Current inundation maps and emergency action plans for areas downstream of
6
Falcon Dam and Amistad Dam;
7
PEER alleged that the USIBWC did not respond to its FOIA request in good faith. In particular,
8
PEER argued that the agency was not being truthful about the existence of the November 2009
9
10 report. In support, PEER attached a copy of an article from a local newspaper, the Brownsville
11 Herald, that discussed the agency’s response and plan of action with respect to sinkholes at the
12 Amistad Dam. The article mentioned that the newspaper had requested a copy of a November
13 2009 report issued by a panel of technical advisors regarding the condition of the Amistad Dam,
14
but that the USIBWC had refused to release it, citing Exemption 5. In addition, with respect to
15
(3), PEER objected to the agency’s failure to explain why Exemption 5 would apply to
16
inundation maps.
17
18 By way of letter dated November 29, 2010, the USIBWC partially denied PEER’s appeal.
19 The agency informed PEER that as part of the appeal process, it “re-conducted” its search for a
20 “November 2009” report on the Amistad Dam, and confirmed that it was unable to locate such a
21
document. However, USIBWC went on to explain that, aided by PEER’s reference on appeal to
22
the Brownsville Herald article, the agency realized, for the first time, that PEER’s description of
23
a “November 2009” report in (1) and (2) appeared to be an effort to obtain information about a
24
report dated October 2009 on the same topic (the “Joint Expert Panel Review”). The USIBWC
25
ORDER-4
admitted that it was in possession of the Joint Expert Panel Review, but invoked Exemption 2 to
1
withhold it on the grounds that disclosure of such information “could facilitate illegal acts
2
3 against critical infrastructure.” With respect to PEER’s request for emails and documents relating
4 in any way to this report, the agency stated that it conducted a new search and located 12
5 documents. The agency provided 11 of these documents to PEER, withholding one pursuant to
6
Exemption 5. Last, the USIBWC addressed PEER’s appeal of its response to (3), pursuant to
7
which PEER sought current inundation maps and emergency action plans for areas downstream
8
of Falcon Dam and Amistad Dam. The agency noted that, with respect to the inundation maps,
9
10 upon repeating its search for responsive material, it located, for the first time, a binder containing
11 77 drafts of such maps. The agency explained, however, that all were being withheld pursuant to
12 Exemptions 2 and 5, on the grounds that the disclosure of such information could facilitate
13 illegal acts against critical infrastructure. With respect to the emergency plans requested as part
14
of (3), the USIBWC located two documents which it released in redacted form. The USIBWC
15
asserted Exemptions 2 and 6 to justify the redactions, explaining that the information withheld
16
included the private contact information of certain agency employees. The USIBWC also
17
18 explained that where possible, as required by the FOIA, it disclosed segregable information in
19 responsive documents. Finally, the USIBWC advised PEER of its right to seek judicial review of
20 the partial denial of its appeal. In all, the USIBWC provided Plaintiff with 1,492 responsive
21
documents and withheld in full 383 documents.
22
On January 31, 2011, PEER filed this lawsuit to compel the USIBWC to disclose the
23
records it withheld. The complaint contains two causes of action. First, PEER alleges that the
24
USIBWC’s failure to disclose the information sought was a violation of the FOIA, as well as the
25
ORDER-5
agency’s regulations promulgated thereunder. Second, PEER alleges a violation of the
1
Administrative Procedure Act (“APA”) on the same facts, claiming that the USIBWC’s failure to
2
3 release all information requested is arbitrary and capricious, and an abuse of discretion. PEER
4 requests an order declaring that the USIBWC wrongfully withheld the requested records, and
5 asks the court to issue an injunction directing release of the same. PEER also seeks attorneys’
6
fees and costs.
7
On March 7, 2011, after PEER instituted this action, but before the USIBWC filed a
8
response to the complaint, the U.S. Supreme Court decided the case of Milner v. Dep’t of the
9
10 Navy, 131 S. Ct. 1259 (2011). In Milner, the Court curtailed the application of FOIA Exemption
11 2, holding that it is applicable only to records relating to the issues of employee relations and
12 human resources. Milner, 131 S. Ct. at 1271. The Supreme Court held that the Department of the
13 Navy, therefore, could not assert Exemption 2 as grounds for withholding sensitive explosive
14
maps and data known as Explosive Safety Quantity Distance (“ESQD”) information. Id. The
15
USIBWC had asserted Exemption 2 to protect certain information responsive to PEER’s FOIA
16
request that could not be characterized as relating only to issues of employee relations and
17
18 human resources. In light of the Milner decision, the agency reviewed its response to PEER‘s
19 FOIA request. But instead of releasing the information previously withheld pursuant to
20 Exemption 2, the USIBWC invoked other FOIA exemptions, including Exemptions 5, (7)(F),
21
and (7)(E), to justify these withholdings.
22
In lieu of an answer, USIBWC filed a Motion for Summary Judgment on April 11, 2011.
23
On May 16, 2011, PEER filed a Cross Motion for Summary Judgment. These motions are both
24
25
ORDER-6
ripe for resolution. On January 26, 2012, this case was reassigned to Judge Barbara Jacobs
1
Rothstein.
2
3 II. STANDARD OF REVIEW
4 a. The Freedom of Information Act
5 The fundamental purpose of the FOIA is to assist citizens in discovering “what their
6
government is up to.” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
7
749, 773 (1989). The FOIA strongly favors openness, as Congress recognized in enacting it that
8
an informed citizenry is “vital to the functioning of a democratic society, needed to check against
9
10 corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
11 Rubber Co., 437 U.S. 214, 242 (1978) (citation omitted). The purpose of the FOIA is “to pierce
12 the veil of administrative secrecy and to open agency action to the light of public scrutiny.”
13 Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Thus, “disclosure,
14
not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361.
15
Under the FOIA, an agency may withhold responsive information only if the information
16
falls within one of several enumerated statutory exemptions. 5 U.S.C. § 552(b). An agency
17
18 asserting that responsive information should be withheld pursuant to an exemption must provide
19 a detailed description of its reasoning. This is accomplished through the submission of a so-
20 called “Vaughn index,” sufficiently detailed affidavits or declarations, or both. Vaughn v. Rosen,
21
484 F.2d 820, 827-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The agency bears the
22
burden of justifying the assertion of an exemption. See Bigwood v. U.S. Agency for Int'l Dev.,
23
484 F. Supp. 2d 68, 74 (2007). Further, because the focus of FOIA is “information, not
24
documents . . . an agency cannot justify withholding an entire document simply by showing that
25
ORDER-7
it contains some exempt material.” Krikorian v. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir.
1
1993) (citation and internal quotation marks omitted). Therefore, the FOIA also imposes on
2
3 federal agencies a duty to provide to a requester all non-exempt information that is “reasonably
4 segregable.” 5 U.S.C. § 552(b). Non-exempt portions of documents must be disclosed unless
5 they are “inextricably intertwined with exempt portions.” Mead Data Central, Inc. v. U.S. Dep’t
6
of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (citations and internal quotation marks
7
omitted).
8
b. The Administrative Procedures Act
9
10 The APA subjects agency action to judicial review only if “there is no other adequate
11 remedy in a court,” 5 U.S.C. § 704. The APA, 5 U.S.C. § 706, provides that:
12 To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
13 constitutional and statutory provisions, and determine the meaning
14 or applicability of the terms of an agency action. The reviewing
court shall—
15
(1) compel agency action unlawfully withheld or unreasonably
16 delayed; and
(2) hold unlawful and set aside agency action, findings, and
17 conclusions found to be--
18 (A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
19 (B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or
20 short of statutory right;
(D) without observance of procedure required by law;
21
(E) unsupported by substantial evidence in a case subject to
22 sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
23 (F) unwarranted by the facts to the extent that the facts are subject
to trial de novo by the reviewing court.
24
25
ORDER-8
c. Summary Judgment
1
The court will grant a motion for summary judgment if the pleadings, the discovery and
2
3 disclosure materials on file, and any affidavits or declarations show that there is no genuine issue
4 as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
5 P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of
6
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the
7
moving party's affidavits or declarations may be accepted as true unless the opposing party
8
submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly,
9
10 963 F.2d 453, 456 (D.C. Cir. 1992).
11 FOIA cases typically and appropriately are decided on motions for summary judgment.
12 Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). An agency
13 satisfies the summary judgment requirements in a FOIA case by providing the court and the
14
Plaintiff with affidavits or declarations and other evidence which show that the documents in
15
question were produced or are exempt from disclosure. Hayden v. National Sec. Agency/Central
16
Sec. Service, 608 F.2d 1381, 1384, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980).
17
18 Summary judgment in FOIA cases may be awarded solely on the basis of agency affidavits
19 “when the affidavits describe ‘the documents and the justifications for nondisclosure with
20 reasonably specific detail, demonstrate that the information withheld logically falls within the
21
claimed exemption, and are not controverted by either contrary evidence in the record nor by
22
evidence of agency bad faith.’” Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 67 (D.D.C. 2001)
23
(quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)).
24
25
ORDER-9
Generally, an agency’s declarations or affidavits are referred to as a Vaughn index, after
1
the case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
2
3 There is no set formula for a Vaughn index. “[I]t is well established that the critical elements of
4 the Vaughn index lie in its function, and not in its form.” Kay v. FCC, 976 F. Supp. 23, 35
5 (D.D.C. 1997). The purpose of a Vaughn index is “to permit adequate adversary testing of the
6
agency’s claimed right to an exemption.” National Treasury Employees Union v. U.S. Customs
7
Service, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead Data Central, 566 F.2d at 251, and
8
Vaughn, 484 F.2d at 828). Thus, the index must contain “an adequate description of the records”
9
10 and “a plain statement of the exemptions relied upon to withhold each record.” National
11 Treasury Employees Union, 802 F.2d at 527 n.9. “Of course the explanation of the exemption
12 claim and the descriptions of withheld material need not be so detailed as to reveal that which the
13 agency wishes to conceal, but they must be sufficiently specific to permit a reasoned judgment as
14
to whether the material is actually exempt under FOIA.” Founding Church of Scientology of
15
Washington, D.C., Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
16
III. MOTIONS FOR SUMMARY JUDGMENT
17
18 The USIBWC contends that it has released all responsive, non-exempt records pursuant
19 to PEER’s FOIA request, and that it is therefore entitled to judgment as a matter of law. The
20 USIBWC submitted, in support its Motion for Summary Judgment, a Statement of Material Facts
21
not in Genuine Dispute, a Memorandum of Points and Authorities, a Vaughn index outlining the
22
bases for withholding responsive information, and a Declaration by Steven Fitten, who is the
23
Chief Freedom of Information Act Officer for the USIBWC (“First Fitten Decl.”) (Dkt. No. 6).
24
Attached to the First Fitten declaration are copies of correspondence between the parties relating
25
ORDER-10
to PEER’s FOIA request, and a copy of a Department of Homeland Security (“DHS”) overview
1
of the Dams Sector of the National Infrastructure Protection Plan. The USIBWC’s responsive
2
3 filing contains: (1) a second declaration by Steven Fitten (“Second Fitten Decl.”) attaching an
4 Intelligence Alert by DHS regarding a potential threat to the Falcon Dam; (2) a copy of FEMA’s
5 Emergency Action Planning for Dam Owners dated April 2004; (3) a declaration by Luis
6
Hernandez, a Civil Engineer with the Safety of Dams, Operations and Maintenance Division of
7
USIBWC (“Hernandez Decl.”) attached to which is documentation of the U.S. Army Corps of
8
Engineers classification of the Falcon and Amistad dams; and (4) a declaration by Carlos Peña,
9
10 Engineer for Special Operations Division, Offices of Safety, Security & Emergency
11 Management at USIBWC (“Peña Decl.”) (Dkt. No. 10). The USIBWC also attached to a Notice
12 of Errata updated declarations by Steve Fitten (“Third Fitten Decl.”) and Carlos Peña (“Second
13 Peña Decl.”) (Dkt. No. 14). 2
14
PEER accuses the USIBWC of bad faith. PEER contends that the agency intentionally
15
denied the existence of certain requested documents, and withheld records to which PEER is
16
entitled under the FOIA. PEER also challenges the USIBWC’s assertions of various FOIA
17
18 exemptions, including the agency’s contention that it is justified in withholding information
19 related to dam safety pursuant to a FOIA Exemption 7. In support of its motion, PEER included
20 a Statement of Material Facts not in Genuine Dispute, and two Memoranda of Points and
21
Authorities (Dkt. Nos. 8 and 13).
22
23
2
24 PEER challenged the Second Declaration of Steve Fitten and the Declaration of Carlos Peña, arguing that these
statements did not comply with 28 U.S.C. § 1746, which requires that a declaration be subscribed to as true under
25 penalty of perjury. Defendant’s Opp./Reply, at 4. In response, the USIBWC withdrew and resubmitted these
declarations, correcting the error. See Notice of Errata (Dkt. No. 14).
ORDER-11
IV. ANALYSIS
1
a. The APA
2
3 As an initial matter, the court finds that PEER’s claims brought pursuant to the APA
4 cannot survive summary judgment. The APA subjects agency action to judicial review only if
5 “there is no other adequate remedy in a court,” 5 U.S.C. § 704. “[I]n determining whether an
6
adequate remedy exists, [the D.C. Circuit] has focused on whether a statute provides an
7
independent cause of action or an alternative review procedure.” El Rio Santa Cruz
8
Neighborhood Health Center, Inc. v. U.S. Dep’t of Health & Human Servs., 396 F. 3d 1265,
9
10 1270 (D.C. Cir. 2005). Where a statute, such as the FOIA, provides an opportunity for de novo
11 district court review of an administrative denial, APA review is precluded. “This court and others
12 have uniformly declined jurisdiction over APA claims that sought remedies made available by
13 FOIA.” Feinman v. FBI, 713 F. Supp. 2d 70, 76 (D.D.C. 2010). See, e.g., Kenney v. U.S. Dep’t
14
of Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009) (FOIA precluded APA claim that defendant
15
improperly withheld records responsive to plaintiff's FOIA request). Therefore, the court
16
dismisses Count II of Plaintiff’s Complaint.
17
18 b. Adequacy of the FBI’s Search for Responsive Documents
19 Upon receipt of a request under the FOIA, an agency must search its records for
20 responsive documents. See 5 U.S.C. § 552(a)(3)(A). “An agency fulfills its obligations under
21
FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to
22
uncover all relevant documents.’” Valencia–Lucena v. United States Coast Guard, 180 F. 3d
23
321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F. 2d 540, 542 (D.C. Cir. 1990));
24
see also Campbell v. U.S. Dep’t of Justice, 164 F. 3d 20, 27 (D.C. Cir. 1998). Thus, an agency
25
ORDER-12
bears the burden of showing that its search was adequate. Steinberg v. United States Dep’t of
1
Justice, 23 F. 3d 548, 551 (D.C. Cir. 1994). To meet its burden, an agency may submit affidavits
2
3 or declarations that explain in reasonable detail the scope and method of the agency's search.
4 Perry v. Block, 684 F. 2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such
5 affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA.
6
Id., at 127.
7
The USIBWC contends that its search methods were reasonably calculated to uncover all
8
responsive documents. The agency outlines, in the Declaration of Steve Fitten, The Chief
9
10 Freedom of Information Act Officer at the agency, the process by which the USIBWC responds
11 to FOIA requests. First Fitten Decl., at ¶12. First, upon receipt of a FOIA request, the staff at the
12 Legal Affairs component of the USIBWC reviews the request, assesses where responsive
13 documents might be located within the agency, and forwards the request to the correct division.
14
Id. In this case, based on the type of information sought by PEER, Mr. Fitten states that he sent
15
the FOIA request to the Safety Dam Section within the Operation and Maintenance Division,
16
which at the time of the search, served as USIBWC‘s technical experts for the review and
17
18 preparation of reports and recommendations concerning dam safety. Id. Mr. Fitten explains that
19 the Safety Dam Section also develops and issues policy statements and guidance regarding dam
20 safety. Id. Mr. Fitten reports that Mr. Luis Hernandez of the Safety Dam Section was the
21
individual who conducted the actual search for documents responsive to the FOIA request. Id.
22
According to Mr. Fitten, Mr. Hernandez has significant experience with reports and technical
23
documents relating to the Amistad Dam, the Falcon Dam, and the Presidio Levee. Id.
24
25
ORDER-13
PEER argues that USIBWC’s response was inadequate. First, PEER contends that the
1
agency acted in bad faith when it initially indicated that it located just two documents responsive
2
3 to PEER’s request for inundation maps and emergency action plans for areas downstream of
4 Falcon Dam and Amistad Dam. After PEER filed its appeal, the agency informed PEER that
5 upon review, it discovered a binder containing 77 drafts of inundation maps. First Fitten Decl., at
6
¶¶21-22. The USIBWC admits that it missed this binder on its initial search for responsive
7
documents, but denies that this failure constitutes proof of either bad faith or an otherwise
8
inadequate search. To the contrary, the agency asserts, proof of its good faith may be found in
9
10 the fact that once it located the binder, it informed PEER of the existence of the 77 draft
11 inundation maps. The court agrees.
12 First, the fact that the USIBWC did not discover every responsive record in its initial
13 search does not itself show bad faith. “[T]his Circuit has held that, under the FOIA, it is
14
unreasonable to expect even the most exhaustive search to uncover every responsive file; what is
15
expected of a law-abiding agency is that the agency admit and correct error when error is
16
revealed.” See Western Center for Journalism v. IRS, 116 F. Supp. 2d 1, 10 (D.D.C. 2000), aff’d
17
18 22 F. App’x 14 (2001) (rejecting plaintiff’s argument that agency’s initial failure to turn over
19 additional responsive documents demonstrated bad faith). Second, it is well-established that
20 “[t]he adequacy of a search is not determined by its results, but by the method of the search
21
itself.” Harrison v. Fed. Bureau of Prisons, 681 F.Supp.2d 76, 81–82 (D.D.C. 2010) (citing
22
Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir.1984)). See also Judicial Watch,
23
Inc. v. U.S. Secret Service, 579 F. Supp.2d 143, 148 (2008) (“the question is not whether the
24
agency has found every possible responsive document, but whether the search was reasonable in
25
ORDER-14
light of the relevant circumstances.”). Mr. Fitten’s declarations demonstrate that the agency’s
1
search for responsive documents was reasonably calculated to uncover all relevant documents.
2
3 PEER also accuses the agency of lying about the Joint Expert Panel Review, the
4 existence of which the agency initially denied. In response to PEER’s appeal, the USIBWC
5 acknowledged for the first time that such a report existed, claiming to have not understood
6
PEER’s reference in its FOIA request, to a November 2009 report. The agency explained that the
7
report sought was actually dated October 2009. PEER challenges this explanation, pointing out
8
that on the USIBWC’s website, the agency refers to this report being dated November 2009. The
9
10 USIBWC responds that its Safety Dams Section was unaware of the date of the report on the
11 agency website, and that it was not until PEER’s appeal and reference to the newspaper article
12 that Mr. Hernandez, who conducted the actual search, understood which document PEER sought.
13 First Fitten Decl., at ¶17-18. The court finds this explanation to be credible. “Once an agency has
14
explained the adequacy of its search by affidavit, the burden shifts back to the plaintiff to
15
demonstrate a lack of a good faith search.” Wilson v. U.S.. Dep’t of Transp., 730 F. Supp.2d 140,
16
149 (2010) (citation omitted). In the instant case, PEER has not presented the court with any
17
18 evidence of bad faith. Incredulity alone cannot undermine the presumption of good faith that is
19 accorded to agency affidavits. See Chamberlain v. U.S. Dep’t of Justice, 957 F. Supp. 292, 294
20 (D.D.C. 1997), aff’d, 124 F.3d 1309 (D.C. Cir. 1997) (“Agency affidavits enjoy a presumption of
21
good faith that withstands purely speculative claims about the existence and discoverability of
22
other documents.”). The court, therefore, finds that the USIBWC has successfully demonstrated
23
that its search for documents responsive to PEER’s FOIA request was reasonably calculated to
24
uncover all relevant documents.
25
ORDER-15
c. FOIA Exemptions
1
Congress created nine FOIA exemptions that allow agencies to withhold specific
2
3 materials to avoid harming legitimate government interests. 5 U.S.C. § 552(b). PEER challenges
4 the USIBWC’s assertion of several exemptions in this case.
5 1. Exemption 2
6
Exemption 2 shields from disclosure information that is “related solely to the internal
7
personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). In response to PEER’s FOIA
8
request, the USIBWC asserted Exemption 2 to justify withholding certain information, including
9
10 the Joint Expert Panel Review (once properly identified), Emergency Action Plans (“EAPs”) for
11 the Falcon Dam and Power Plant and the Amistad Dam and Power Plant, as well as dam failure
12 inundation maps. As explained in Section I, above, on March 7, 2011, the U.S. Supreme Court
13 decided the case of Milner v. Department of the Navy, 131 S. Ct. 1259 (2011). In Milner, the
14
Court severely curtailed the application of Exemption 2, holding that it could no longer be used
15
to justify withholding records on the grounds that disclosure would risk circumvention of the law
16
or federal agency functions. Milner, 131 S. Ct. at 1271. The Supreme Court ruled that “consistent
17
18 with the plain meaning of the term ‘personnel rules and practices,’” Exemption 2 “encompasses
19 only records relating to issues of employee relations and human resources.” Id. As explained in
20 Section I, above, in light of the Milner decision, the USIBWC withdrew its reliance on
21
Exemption 2, and invoked other FOIA exemptions, including Exemptions 5, (7)(f), and (7)(e), to
22
justify its withholdings. Because the USIBWC no longer asserts that information has been
23
withheld pursuant to Exemption 2, the court need not consider its application.
24
25
ORDER-16
2. Exemption 5
1
Exemption 5 allows agencies to withhold “inter-agency or intra-agency memorandums or
2
3 letters which would not be available to a party other than an agency in litigation with the
4 agency[.]” 5 U.S.C. § 552(b)(5). This exemption thus encompasses documents that would be
5 protected from disclosure by one or more legal privileges, such as the attorney work product
6
privilege or the deliberative process privilege. Williams & Connolly v. Securities and Exchange
7
Commission, 662 F. 3d 1240, 1243 (D.C. Cir. 2011).
8
The documents for which USIBWC claims Exemption 5 protection are:
9
10 • An electronic email dated November 13, 2009, providing comments on
interim risk reduction measures; and
11
• The Joint Expert Panel Review of the Amistad Dam.
12
i. Threshold Issue
13
14 The threshold issue under Exemption 5 is whether the records in question qualify as inter-
15 agency or intra-agency memoranda. 5 U.S.C. §552(b)(5). “[A]gency” is defined in the statute to
16 mean “each authority of the Government,” 5 U.S.C. §551(1). It includes entities such as
17
Executive Branch departments, military departments, Government corporations, Government-
18
controlled corporations, and independent regulatory agencies. 5 U.S.C. §552(f). The USIBWC
19
contends and the court agrees, that the November 13, 2009 email meets the Exemption 5
20
21 threshold because it is an internal communication between agency employees regarding
22 deliberations and comments as to interim risk reduction measures.
23 The Joint Expert Panel Review, however, was authored by a panel of experts and
24 consultants who are not employees of the USIBWC. The agency explains that the Joint Expert
25
Panel Review was authored by employees of the United States Army Corps. of Engineers and the
ORDER-17
United States Bureau of Reclamation. First Fitten Decl., at ¶18, and Vaughn Index attached to
1
Defendant’s Mot. as Exhibit 1 (Dkt. No. 6). The Joint Expert Panel Review was prepared to
2
3 assist the USIBWC in its evaluation of the potential risks in the Amistad Dam’s foundation and
4 embankment. First Fitten Decl., at ¶18. The document also provided the agency with
5 recommendations about the Amistad Dam’s safety rating, and included “considerations about the
6
types of metrics that the USIBWC might consider key in its continued examination of
7
deficiencies, strengths, adequacies and projections.” Id.
8
Although this report was not prepared by agency employees, the agency nevertheless
9
10 contends that it meets the Exemption 5 threshold. Indeed, some courts have extended the
11 protection of Exemption 5 to documents prepared for an agency by outside consultants. “In such
12 cases, the records submitted by outside consultants played essentially the same part in an
13 agency's deliberative process as documents prepared by agency personnel.” Dep’t of the Interior
14
and Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 12 (2001).
15
This extension of the definition of “intra-agency” is called the “consultant corollary.” Klamath,
16
532 U.S. at 11. The consultant corollary is available where the consultant
17
18 does not represent an interest of its own, or the interest of any other
client, when it advises the agency that hires it. Its only obligations
19 are to truth and its sense of what good judgment calls for, and in
those respects the consultant functions just as an employee would
20 be expected to do.
21
Klamath, 532 U.S. at 11. In Klamath¸ itself, however, the Supreme Court declined to extend the
22
consultant corollary to protect from disclosure documents that were submitted by certain Indian
23
tribes at the request of Bureau of Indian Affairs in course of administrative and adjudicative
24
proceedings. Id., at 12-13. The Court was unwilling to characterize the tribes, who not only had
25
ORDER-18
an interest in the matter at issue, but who were “self-advocates at the expense of others seeking
1
benefits inadequate to satisfy everyone,” as consultants that were effectively acting as employees
2
3 of the agency. Id., at 12. PEER likens the facts of the instant case to those in Klamath, arguing
4 that the Joint Expert Panel Review was written by representatives of agencies that could hardly
5 be considered interchangeable with USIBWC employees. PEER explains that on the agency
6
website, there is a description of the technical advisors who drafted the report, and that the group
7
included, for example, representatives of the Mexican National Water Commission
8
(“CONAGUA”). The USIBWC contends that the authors of the Joint Expert Panel Review acted
9
10 as expert advisors of the agency in preparing this report, and had no interests divergent from
11 those of the USIBWC. The USIBWC argues that the facts of this case are much closer to those
12 presented in McKinley v. Federal Deposit Insurance Corp., 647 F. 3d 331 (D.C. Cir. 2011), than
13 to those in Klamath.
14
In McKinley, the court found that the Board of Governors of the Federal Reserve System
15
(“Board”) properly withheld information related to the Board's decision to authorize the Federal
16
Reserve Bank of New York (“FRBNY”) to provide a temporary loan to FRBNY member banks.
17
18 McKinley, 647 F.3d at 337-39. The court held that unlike the Indian tribes, the FRBNY did not
19 represent an interest of its own, or the interest of any other client, when it advised the Board
20 about the financial condition of the relevant banks. McKinley, 647 F. 3d at 337. The McKinley
21
court accepted the characterization of the FRBNY “as an operating arm” of the agency. Id. The
22
court explained that Exemption 5:
23
was created to protect the deliberative process of the government,
24 by ensuring that persons in an advisory role would be able to
express their opinions freely to agency decision-makers without
25
fear of publicity. In the course of its day-to-day activities, an
ORDER-19
agency often needs to rely on the opinions and recommendations
1 of temporary consultants, as well as its own employees. Such
consultations are an integral part of its deliberative process; to
2
conduct this process in public view would inhibit frank discussion
3 of policy matters and likely impair the quality of decisions.
4 McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F. 3d 331, 339 (D.C. Cir. 2011)
5 (citation omitted).
6
The USIBWC has assured the court that the responsibility of the panel that worked on the
7
Joint Expert Panel Review of the Amistad Dam was assisting the USIBWC. First Fitten Decl., at
8
¶18. There is not the slightest indication that these experts represented any outside interests. It
9
10 appears that their function was simply to provide accurate information for the USIBWC to use in
11 making various determinations with respect to the Amistad Dam. PEER has provided no
12 evidence in contradiction. The court is therefore satisfied that the Joint Expert Panel Review of
13 the Amistad Dam fairly may be characterized as an “intra-agency” memorandum. The court
14
turns to the second part of the Exemption 5 inquiry: whether the November 13, 2009 email and
15
the Joint Expert Panel Review may be withheld under the Deliberative Process privilege.
16
ii. Deliberative Process Privilege
17
18 Exemption 5 encompasses, among other things, documents that would be protected from
19 disclosure by the deliberative process privilege. Williams & Connolly v. Sec. and Exch. Comm’n,
20 662 F. 3d 1240, 1243 (D.C. Cir. 2011). The deliberative process privilege
21
covers recommendations, draft documents, proposals, suggestions,
22 and other subjective documents which reflect the personal opinions
of the writer rather than the policy of the agency. Documents
23 which are protected by the privilege are those which would
inaccurately reflect or prematurely disclose the views of the
24 agency, suggesting as agency position that which is as yet only a
personal position.
25
ORDER-20
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (citation
1
omitted). To be protected by the deliberative process privilege, documents must be both
2
3 “predecisional” and “deliberative.” Public Citizen, Inc. v. Office of Management and Budget, 598
4 F.3d 865, 874 (D.C. Cir. 2010). A document is “predecisional” if it is generated prior to the
5 adoption of an agency policy, and “deliberative” if it “reflects the give-and-take of the
6
consultative process.” Id. (citation omitted). The agency must carry the “burden of establishing
7
what deliberative process is involved, and the role played by the documents in issue in the course
8
of that process.” Coastal States, 617 F.2d at 868 (citing Vaughn v. Rosen (Vaughn II), 523 F.2d
9
10 1136, 1146 (D.C. Cir. 1975)).
11 a. The November 13, 2009 Email
12 The USIBWC explains that the November 13, 2009 email contains opinions and
13 comments on the draft Emergency Action Plan, and was generated before the USIBWC‘s
14
adoption of a completed Emergency Action Plan on October 30, 2010. First Fitten Decl., at ¶18.
15
But PEER objects to the assertion of Exemption 5 with respect to the email, arguing that it was,
16
in fact “an operational communication regarding implementation measures taken with respect to
17
18 the technical adviser’s Plan as adopted by the agency.” Plaintiff’s Cross Mot., at 28. PEER,
19 however, presents the court with no evidence to support its theory. The court finds that the
20 agency has carried its burden of demonstrating that the November 13, 2009 email is a
21
predecisional document. The email is also clearly deliberative. Indeed, it is precisely the type of
22
communication that the deliberative process privilege is designed to protect: one that “reflects
23
the give-and-take of the consultative process.” Public Citizen, Inc., 598 F.3d at 874 (citation
24
omitted). With respect to the November 13, 2009 email, therefore, the court finds that the
25
ORDER-21
USIBWC has carried its burden of establishing that it was properly withheld pursuant to
1
Exemption 5.
2
3 b. The Joint Expert Panel Review
4 The agency states that the Joint Expert Panel Review is both predecisional and
5 deliberative, as it was generated to provide recommendations to the USIBWC as part of the
6
USIBWC’s continual process of examining the potential for risks in the foundation of the
7
Amistad Dam. Fitten Decl., at ¶ 18. PEER objects, contending that even if the Joint Expert Panel
8
Review was predecisional at the time it was created, it has since lost that status. PEER cites to
9
10 the USIBWC website itself for proof that the Joint Expert Panel Review was ultimately adopted
11 by the USIBWC as its own project plan, and that it has actually been implemented:
12 The agency initiated the implementation of several elements
recommended in the consensus report, one of which includes the
13 Risk Analysis Study. Dependent on the results from the Risk
14 Analysis Study and the availability of funds, the agency anticipates
the initiation of the following work in FY 2010: 1) Foundation and
15 embankment studies, to include stability studies, 2) Installation of
additional embankment and foundation piezometers, 3) Further
16 investigation of the ‘sinkhole area’, 4) Further investigation of a
previously reported ‘depression’ area located on the upstream
17 embankment, in Mexico, having proximity to the ‘sinkhole area’,
18 5) A geotechnical ‘Willow stick survey’ and a Remote Operated
Vehicle/Hydrophone survey.
19
Plaintiff’s Cross Mot. for Summary Judgment at 28, citing
20
http://www.ibwc.gov/Mission_Operations/SoD_Amistad.html.
21
22 PEER is correct that even if a document is “predecisional at the time it is prepared, it can
23 lose that status if it is adopted, formally or informally, as the agency position on an issue or is
24 used by the agency in its dealings with the public.” Coastal States, 617 F.2d at 866. Whether a
25
document has in fact been “adopted” by an agency depends in large part on the function and
ORDER-22
significance of the document in the agency’s decisionmaking process. This type of determination
1
is necessarily fact-dependent, but it is also driven by a “strong theme” in this circuit’s opinions
2
3 such that an “agency will not be permitted to develop a body of secret law, used by it in the
4 discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of
5 privilege because it is not designated as formal, binding, or final.” Coastal States, 617 F.2d at
6
867 (citations and internal quotation marks omitted).
7
In the instant matter, where there is no concern that the USIBWC is attempting “develop
8
a body of secret law,” the reasoning in Coastal States has no application. Moreover, the court is
9
10 unpersuaded by PEER’s assertion that the Joint Expert Panel Review has been adopted to the
11 extent that it can no longer be viewed as predecisional. PEER’s citation of a few lines of text on
12 the USIBWC website in which the agency indicates that it intends to implement some of the
13 recommendations contained in the Joint Expert Panel Review is far from convincing proof that
14
the agency has adopted the document as policy. In the court’s view, the Joint Expert Panel
15
Review is not only clearly predecisional, but deliberative as well. The USIBWC convened a
16
panel of experts to assess the structural condition of the Amistad Dam, and to make
17
18 recommendations with regard to the dam’s safety rating. First Fitten Decl., at ¶18. The resulting
19 document neatly “reflects the give-and-take of the consultative process.” Public Citizen, 598 F.
20 3d at 874. The court finds that the USIBWC has carried its burden of demonstrating that the Joint
21
Expert Status Review is predecisional and deliberative, and that its assertion of Exemption 5 to
22
withhold this document from PEER was justified.
23
24
25
ORDER-23
3. Exemption 6
1
Exemption 6 exempts from disclosure personnel and medical files when the disclosure of
2
3 such information would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C.
4 §552(b)(6). If a court determines that a substantial privacy interest is at stake, the court must
5 balance the public interest in disclosure against the individual privacy concerns. Nat'l Ass'n of
6
Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002).
7
In the instant case, the USIBWC asserts Exemption 6 to justify its redactions of private
8
contact information of emergency personnel from its EAP for the Falcon Dam and Power Plant,
9
10 Falcon Heights, TX, and from its EAP for Amistad Dam and Power Plant, Del Rio, TX. The
11 agency explains that the information withheld consists of the personal cell phone numbers and
12 home phone numbers of various emergency personnel for use by USIBWC staff in case of an
13 emergency. First Fitten Decl., at ¶ 23. Plaintiff, however, contests the application of Exemption
14
6. First, Plaintiff argues that emergency personnel whose names and cell phone numbers are in
15
an EAP have waived any privacy interest in their contact information. Second, Plaintiff argues,
16
even if these personnel retain some privacy interest in their contact information, such interest is
17
18 weakened by the fact that the information was included in the EAPs. Defendant counters that
19 although the Plaintiff believes the privacy interests are very weak, it has done nothing to show
20 what the countervailing public interest might be. The court agrees. As this circuit has often
21
noted, where there is no public interest in the release of information, “something, even a modest
22
privacy interest, outweighs nothing every time.” National Ass’n of Retired Fed. Employees v.
23
Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). The court finds that the USIBWC correctly invoked
24
25
ORDER-24
Exemption 6 to withhold the contact information of emergency personnel whose names appear in
1
the above-referenced EAPs.
2
3 4. Exemption 7
4 Exemption 7 protects from disclosure “records or information compiled for law
5 enforcement purposes,” but only to the extent that disclosure of such records would cause an
6
enumerated harm. 5 U.S.C. § 552(b)(7). In order to withhold materials properly under Exemption
7
7, an agency first must establish the threshold issue, that the records at issue were compiled for
8
law enforcement purposes, and then that the material satisfies the requirements of one of the
9
10 subparts of Exemption 7. Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982).
11 The documents for which the USIBWC asserts Exemption 7 are portions of the
12 following:
13
• Two Emergency Action Plans (“EAPs”), for the Falcon Dam and Power Plant,
14 in Falcon Heights, TX, and for the Amistad Dam and Power Plant in Del Rio,
TX; and
15
• Dam Failure Inundation Maps (77 maps as well as maps included in the
16 EAPs).
17
The USIBWC asserts Exemption 7(e) to justify withholding various guidelines for law
18
enforcement that are contained in the EAPs, and Exemption 7(f) to protect all the inundation
19
maps both in the EAPs and in the belatedly-discovered binder.
20
21 i. Threshold Issue
22 The USIBWC contends that both the EAPs and the inundation maps were compiled for
23 law enforcement purposes and thus qualify for protection under Exemption 7. In assessing
24 whether records were compiled for law enforcement purposes, the “focus is on how and under
25
what circumstances the requested files were compiled, and whether the files sought relate to
ORDER-25
anything that can fairly be characterized as an enforcement proceeding.” Jefferson v. Dep’t of
1
Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).
2
3 Therefore, an agency must show some nexus between the compilation of the record at issue, and
4 a legitimate law enforcement purpose.
5 The USIBWC begins by outlining the agency’s relationship to law enforcement. It
6
explains that USIBWC is a member agency of the Interagency Committee on Dam Safety
7
(“ICDS”) established by the National Dam Safety Act, 33 U.S.C. § 467 et seq. First Fitten Decl.,
8
at ¶2. As a ICDS member, the USIBWC explains that it is “responsible for the establishment and
9
10 maintenance of federal programs, policies, and guidelines on dam safety for the protection of
11 human life and property through coordination among federal agencies concerning the
12 implementation of Federal Guidelines for Dam Safety.” Id. The agency notes that the ICDS
13 works in conjunction with the Office of Infrastructure Protection (“OIP”) within the Department
14
of Homeland Security (“DHS”) which serves as the Sector-Specific Agency for the Dams Sector
15
of the National Infrastructure Protection Plan (NIPP). Id., at ¶ 3. The USIBWC states that
16
according to the NIPP, Dam Sector, due to the potential to cause massive downstream casualties
17
18 and severe economic impact, dams are considered a possible terrorist target. Id., at ¶4. As a
19 result, the NIPP, Dam Sector, apparently has encouraged all owners and operators of dams to
20 take protective measures such as integrating security into existing emergency plans and
21
increasing liaison with all levels of law enforcement. Id., at ¶5. The agency claims that concerns
22
about terrorist activity involving dams are legitimate, noting, for example, that on or about April
23
29, 2010, the DHS informed the USIBWC of a specific threat that had been made against the
24
Falcon Dam. Id., at ¶6. In addition, the agency states that it received information in May 2010,
25
ORDER-26
such that criminal organizations in Mexico allegedly had developed plans to breach the Amistad
1
and Falcon Dams by using strategically-located explosive devices, with the intention of causing
2
3 destructive floods. Third Fitten Decl., at ¶¶ 3-4.
4 Next, the agency asserts that the inundation maps, which identify and delineate areas that
5 would be affected by floods, were created to assist emergency management officials, including
6
the Federal Bureau of Investigation and US Border Patrol, in protecting property and lives during
7
an emergency caused by dam failure. First Fitten Decl., at ¶ 22. The maps apparently show
8
estimated travel times for flood progression, times for peak elevation of waters, and other
9
10 information critical to law enforcement in case of an emergency. Id. The agency contends that
11 the two EAPs likewise were created to assist law enforcement agencies in managing emergency
12 situations. Id., at 23. Therefore, the USIBWC asserts, given that dams are a potential target for
13 terrorist attacks, and given the huge threat to public safety in the event of a dam failure, there is a
14
real nexus between its role of ensuring dam safety and such threats, that involve law
15
enforcement.
16
PEER vigorously disputes the USIBWC’s contention that the EAPs and inundation maps
17
18 were compiled for law enforcement purposes, and goes to substantial lengths attempting to
19 disassemble the agency’s claim. PEER maintains that the agency has acted in bad faith, both in
20 responding to its FOIA request, and also in its representations to the court in the briefs on these
21
motions. First, PEER challenges the USIBWC’s assertion that the dams in question are potential
22
targets of terrorist attacks, claiming that a “possible terrorist target could describe just about any
23
public or private infrastructure of any type anywhere in the country.” Plaintiff’s Cross Mot., at 2-
24
3. PEER argues that the April 2010 threat to which the agency referred was “immediately
25
ORDER-27
debunked as a hoax[,]” id., at 13, and likewise challenges the legitimacy of the May 2010 threat.
1
Defendant’s Opp./Reply, at 4. Second, PEER claims that the fact that the USIBWC is a member
2
3 of the ICDS is irrelevant, arguing that “virtually every federal agency . . . sits on at least one
4 interagency committee concerning critical infrastructure.” Plaintiff’s Cross Mot., at 3. Moreover,
5 PEER claims, the agency overstates its role in encouraging coordination among federal agencies
6
with respect to dam safety. Id. According to PEER, it is the ICDS itself, rather than individual
7
member agencies, that is charged with encouraging coordination among federal agencies with
8
respect to dam safety. Id. Finally, PEER draws the court’s attention to the fact that some
9
10 agencies, including the Federal Emergency Management Agency (“FEMA”) and the U.S. Army
11 Corps of Engineers (“USACE”), apparently encourage dam owners and operators to share EAPs
12 and inundation maps with downstream communities, recognizing that such documents contain
13 information critical to the public. Id., at 4-6. For example, according to PEER, the USACE has
14
posted online all inundation maps for the Wolf Creek Dam in Kentucky, and the government of
15
California routinely posts such maps online. Id., at 6-8.
16
PEER’s attempt to characterize as disingenuous the USIBWC’s concern that its dams
17
18 might be attractive targets for terrorists does nothing to alter the reality that such concerns may
19 be valid. The court is aware that it is widely accepted that dams are a matter of concern for
20 homeland security, and as such, implicate law enforcement. Similarly, the court is unmoved by
21
PEER’s assertion that this country has many such potential terrorist targets. A suggestion that the
22
likelihood of a terrorist attack on, in particular, the Amistad Dam or the Falcon Dam, compared
23
with any other national infrastructure, may be relatively low, does not negate the fact that the
24
25
ORDER-28
USIBWC’s activities have a nexus with law enforcement, or that these documents were, in fact,
1
compiled for a law enforcement purpose.
2
3 Finally, the court is not swayed by PEER’s argument that other agencies have reached
4 different conclusions with respect to the need to withhold EAPs and inundation maps. The
5 question before the court is not whether the USIBWC would have been justified in releasing the
6
inundation maps and EAPs, it is whether the USIBWC’s assertion of Exemption 7 to justify
7
withholding this information, in this case, is sound.
8
The court finds that the USIBWC has demonstrated the required nexus between its
9
10 activites and law enforcement. The agency has explained, in detail, how its activities relating to
11 dam safety interact with law enforcement. Furthermore, courts recognize that law enforcement
12 within the meaning of the Exemption 7 threshold extends to matters of homeland security. See,
13 e.g., Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (finding
14
law enforcement threshold is met by records compiled in course of investigation into breach of
15
national security). A relevant example may be found in Living Rivers, Inc. v. US Bureau of
16
Reclamation, 272 F. Supp.2d 1313 (D. Utah 2003), in which the court examined an agency’s
17
18 refusal to disclose inundation maps pursuant to a FOIA request. In Living Rivers, the Bureau of
19 Reclamation (“BOR”) withheld inundation maps pursuant to Exemption 7(F), asserting that
20 disclosure could reasonably place risk of life or physical safety to those who occupy the
21
downstream areas of the Hoover or Glen Canyon Dam. Id., at 1321. The BOR argued that
22
because the maps included such details as estimated travel times for flood progression, terrorists
23
could use the maps to cause massive harm to the lives of others. Id. The Living Rivers court
24
agreed, and held that the agency had satisfied its burden of justifying its decision not to disclose
25
ORDER-29
the maps. PEER argues that Living Rivers is inapplicable because in that case, the court found
1
that Congress had provided the BOR with express law enforcement authority” to “maintain law
2
3 and order and protect person and property within Reclamation projects and on Reclamation
4 lands.” Id., at 1319, citing 43 U.S.C. § 373b(a). But in the instant case, the inundation maps and
5 EAPs were created at the request of FEMA and relate to the nation’s homeland security in the
6
event of an emergency. See Hernandez Decl., at ¶10 and Third Fitten Decl., at ¶6.
7
The court is of the opinion that given the potential for threats against the dams operated
8
by USIBWC, as well as the potential for harm to public safety, the inundation maps and EAPs
9
10 are documents that were compiled for law enforcement purposes. The court holds that the
11 USIBWC has carried its burden to show that the threshold requirement for Exemption 7 has been
12 met for both the EAPs and the inundation maps.
13 ii. Exemption 7(E)
14
Exemption 7(E) protects from disclosure records or information, compiled for law
15
enforcement purposes, to the extent that the production of such records or information “would
16
disclose techniques and procedures for law enforcement investigations or prosecutions, or would
17
18 disclose guidelines for law enforcement investigations or prosecutions if such disclosure could
19 reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The first
20 clause of Exemption 7(E) affords “categorical” protection for “techniques and procedures” used
21
in law enforcement investigations or prosecutions. Showing Animals Respect and Kindness v.
22
U.S. Dep’t of Interior, 730 F. Supp.2d 180, 199-200 (D.D.C. 2010) (stating the Fish and Wildlife
23
Service properly withheld its surveillance techniques that could compromise its ability to
24
conduct future investigations at wildlife refuges). Exemption 7(E)'s second clause separately
25
ORDER-30
protects “guidelines for law enforcement investigations or prosecutions if [their] disclosure could
1
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Accordingly,
2
3 this clause protects any “law enforcement guideline” that pertains to the prosecution or
4 investigative stage of a law enforcement matter whenever its disclosure “could reasonably be
5 expected to risk circumvention of the law.” See, e.g., PHE, Inc. v. Dep’t of Justice, 983 F.2d
6
248, 251 (D.C. Cir. 1993) ("release of FBI guidelines as to what sources of information are
7
available to its agents might encourage violators to tamper with those sources of information and
8
thus inhibit investigative efforts").
9
10 The USIBWC asserts Exemption 7(E) to justify withholding various guidelines for law
11 enforcement that are contained in the EAPs for the Amistad and Falcon Dams and Power Plants.
12 The agency explains that it properly withheld portions of the EAPs including, for example,
13 “descriptions of surveillance plans, logistics and conclusions meant for use by the USIBWC and
14
emergency management personnel as guidelines and procedures in the event of an emergency
15
such as a terrorist attack.” Defendant’s Mot., at 16; First Fitten Decl., at ¶ 24. PEER argues that
16
the disclosure of the law enforcement guidelines contained in the EAPs would not endanger the
17
18 life or physical safety of anyone. But this argument is premised on PEER’s unsubstantiated
19 contention that the USIBWC dams are not a genuine target for terrorist activity. The court has
20 already rejected that argument.
21
The court finds that the USIBWC properly withheld portions of the EAPs responsive to
22
PEER’s request pursuant to Exemption (7)(E). According to the NIPP, Dam Sector, dams
23
operated by the USIBWC such as the Falcon and Amistad Dams, are considered possible
24
terrorist threats because of the potential for massive downstream casualties. See First Fitten Decl.
25
ORDER-31
¶4. Moreover, the EAPS contain sensitive information, as outlined above, the disclosure of
1
which could endanger public safety. As the EAPs contained information, in part, that would
2
3 reveal the USIBWC‘s guidelines and procedures for an emergency such as a terrorist attack, the
4 agency properly redacted portions of its EAPs pursuant to Exemption 7(E).
5 iii. Exemption 7(F)
6
Exemption 7(F) exempts from mandatory disclosure records or information compiled for
7
law enforcement purposes the disclosure of which “could reasonably be expected to endanger the
8
life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). The USIBWC asserts this
9
10 exemption to justify its withholding of the inundation maps that are part of the EAPs for the
11 Amistad and Falcon Dams, as well as those in the binder located during the agency’s processing
12 of PEER’s appeal. In reviewing claims under Exemption 7(F), courts have inquired whether
13 there is some nexus between disclosure and possible harm, and the whether the deletions were
14
narrowly made to avert the possibility of such harm. Albuquerque Pub. Co. v. United States
15
Dep’t of Justice, 726 F. Supp. 851, 858 (D.D.C. 1989).
16
PEER disputes the USIBWC’s argument that release of these maps could reasonably be
17
18 expected to endanger the life or physical safety of persons in the vicinity of the dams, noting that
19 FEMA and the USACE regularly encourage dam owners and operators to share EAPs and
20 inundation maps with downstream communities. See Section IV(c)(4)(i), above. However, in
21
order to defeat the USIBWC’s assertion of Exemption 7(F), PEER would need something more
22
than evidence that different agencies have, at times, made different judgments about the security
23
issues implicated by making inundation maps public. Further, there is good reason to believe that
24
the USIBWC’s decision in this instance was based on legitimate security considerations. The
25
ORDER-32
inundation maps identify and delineate areas that would be affected by floods in the event of dam
1
failure. First Fitten Decl., at ¶ 22. The maps show estimated travel times for flood progression as
2
3 well as peak elevation for waters in the event of dam failure. Id. The court agrees with the
4 USIBWC that “with the ability to deduce the zones and populations most affected by dam
5 failure, release of such maps could increase the risk of terrorist attack on the dams.” Id. Indeed,
6
the USIBWC is not alone in making the evaluation that such information “could reasonably be
7
expected to endanger the life or physical safety of any individual.” As discussed above, the
8
United States District Court for the District of Utah found that inundation maps maintained by
9
10 the U.S. Bureau of Reclamation (“BOR”) were exempt from disclosure pursuant to Exemption
11 7(F). Living Rivers, Inc. v. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003). In
12 Living Rivers, the court upheld BOR’s withholding of inundation maps pursuant to Exemption
13 7(F). BOR asserted that disclosure could reasonably place risk of life or physical safety to those
14
who occupy the downstream areas of the Hoover or Glen Canyon Dam. Id., at 1321. BOR
15
explained that because the maps included such details as estimated travel times for flood
16
progression, terrorists could use the maps to cause massive harm to the lives of others. Id. See
17
18 also, Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011) (Alito, J., concurrence) (stating regarding
19 Exemption 7(F) that “[i]n most cases involving security information, it is not difficult to show
20 that disclosure may endanger the life or physical safety of any individual.”). The court finds that
21
the USIBWC properly invoked Exemption 7(F) to withhold, in full, 77 inundation maps and the
22
inundation maps contained in the EAPs.
23
24
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d. Segregability
1
Even when an agency properly withholds a responsive record under one of FOIA's
2
3 exemptions, it nevertheless must disclose any non-exempt information that is “reasonably
4 segregable,” 5 U.S.C. § 552(b), unless the exempt and non-exempt portions are “inextricably
5 intertwined with exempt portions.” Mead Data Central, Inc. v. Dep’t of the Air Force, 566 F.2d
6
242, 260 (D.C. Cir. 1977). An agency must provide a “detailed justification” and not just
7
“conclusory statements” to demonstrate that it has released all reasonably segregable
8
information. Mead Data Central, 566 F.2d at 261. Agencies, however, need not provide a
9
10 “detailed justification that would itself compromise the secret nature of potentially exempt
11 information.” Id. “Ultimately, to discharge its burden before the district court, the agency “must
12 provide a reasonably detailed justification rather than conclusory statements to support its claim
13 that the non-exempt material in a document is not reasonably segregable.” Schoenman v. F.B.I.,
14
763 F. Supp.2d 173, 202 (D.D.C. 2011).
15
The USIBWC contends that it “provided all non-exempt information and disclosed all
16
reasonably segregable information after redaction of exempt information.” First Fitten Decl., at
17
18 ¶24. Specifically, the agency notes that it evaluated every responsive document to determine
19 whether there was any information that could be segregated and released.” Id. The agency avers
20 that any “records withheld in full were reports that were predecisional in nature reflecting inter-
21
or intra-agency communications pertaining to legal or policy-related dam safety matters, with
22
any non-exempt portions being inextricably intertwined with exempt portions.” Id. The court
23
finds that the USIBWC has discharged its burden of showing with reasonable specificity why
24
documents could not be further segregated.
25
ORDER-34
e. Attorneys’ Fees and Costs
1
PEER seeks an award of attorneys’ fees and costs pursuant to 5 U.S.C. §552(a)(4)(E).
2
3 Plaintiff’s Complaint at 11 (Dkt. No. 1). The FOIA provides that courts “may assess against the
4 United States reasonable attorney fees and other litigation costs reasonably incurred in any case
5 ... in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). A plaintiff
6
who has not substantially prevailed is not eligible to receive compensation for its attorneys. The
7
court having granted Defendant’s Motion for Summary Judgment, finds that PEER has not
8
substantially prevailed, and thus denies its request for attorney’s fees.
9
10 f. PEER’s Request for a Written Finding
11 Pursuant to 5 U.S.C. §552(a)(4)(F)(i),
12 Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the
13 United States reasonable attorney fees and other litigation costs,
14 and the court additionally issues a written finding that the
circumstances surrounding the withholding raise questions whether
15 agency personnel acted arbitrarily or capriciously with respect to
the withholding, the Special Counsel shall promptly initiate a
16 proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for
17 the withholding. The Special Counsel, after investigation and
18 consideration of the evidence submitted, shall submit his findings
and recommendations to the administrative authority of the agency
19 concerned and shall send copies of the findings and
recommendations to the officer or employee or his representative.
20 The administrative authority shall take the corrective action that
the Special Counsel recommends.
21
22
PEER seeks a written finding from the court in this case, based on, among other things,
23
its claims that the agency initially denied the existence of the Joint Expert Panel Review, and that
24
the agency exaggerated the threat of harm from releasing the withheld documents. However, as
25
ORDER-35
explained in detail above, the court has already rejected these arguments. See Section IV(c)(4)(i).
1
PEER also argues that the USIBWC is motivated by “apparent hostility to this particular
2
3 requester.” Plaintiff’s Cross Mot., at 32. The agency denies harboring a grudge of any kind, and
4 asserts, correctly, that the record is devoid of proof of any hostility on the part of the USIBWC.
5 Further, there is actually some evidence to suggest the opposite; that the USIBWC handled
6
PEER’s FOIA request in exactly the same manner that it has handled requests from other parties.
7
For example, just as it did in the instant case, the USIBWC withheld the Joint Expert Panel
8
Review from the Brownsville Herald pursuant to Exemption 5. Defendant’s Opp./Reply, at 16.
9
10 The court is aware that there is some litigation history between these parties, but finds that there
11 is no evidence in this record to support PEER’s claim that the USIBWC acted improperly toward
12 it. Therefore, the court denies PEER’s request for a written finding pursuant to Section
13 552(a)(4)(F)(i).
14
V. CONCLUSION
15
For all the reasons listed above, the court hereby GRANTS Defendant’s Motion for
16
Summary Judgment, and DENIES Plaintiff’s Cross Motion for Summary Judgment.
17
18 It is hereby ORDERED that judgment be entered for the Defendant.
19
20 DATED this 20th day of March, 2012.
21
22 A
23 Barbara Jacobs Rothstein
U.S. District Court Judge
24
25
ORDER-36