Myrick v. Johnson

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

JEFFREY MYRICK, )

)

Plaintiff, )

) Civil Action No. 15-1451

v. )

)

JEH CHARLES JOHNSON, )

)

Defendant. )

______________________________)

MEMORANDUM AND OPINION

Plaintiff Jeffrey Myrick (“Plaintiff”) is a Special

Agent employed by Immigration and Customs Enforcement

(“ICE”), in the Homeland Security Investigations (“HSI”)

division. On January 7, 2015, Plaintiff requested certain

documents from the U.S. Department of Homeland Security

(“Defendant”) pursuant to the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. Complaint for Injunctive Relief

(“Compl.”), ECF No. 2, ¶ 5. Specifically, Plaintiff sought

information “pertaining to Special Agent/Program Manager

Chris Watkins of the Certified Undercover Operation in

Fairfax, VA at the Cyber Crimes Center named ‘Operation

Coverall,’” as well as other logistical information

regarding the undercover operation. Id. On February 25,

2016, Defendant filed a Motion for Summary Judgment,

arguing that it is exempt from acknowledging the existence

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or non-existence of the records under FOIA Exemptions 6,

7(C), and 7(E). For the reasons discussed below,

Defendant’s Motion for Summary Judgment is GRANTED.

I. Background

Plaintiff’s FOIA request sought documents pertaining

to the relevant undercover operation “to ascertain whether

his then-first level supervisor and Defendant’s agent, Sjon

Shavers, Section Chief, Cyber Crimes Unit, engaged in

employment discrimination on account of Plaintiff’s race.”

Compl. ¶ 3. When Plaintiff did not receive the requested

information more than seven months later, he filed suit on

September 4, 2015. Id. ¶¶ 6-7. On January 13, 2016,

Defendant informed Plaintiff that it could “neither confirm

or deny the existence of records responsive to

[Plaintiff’s] request,” and that if they existed, “they

would be exempt from disclosure pursuant to FOIA Exemptions

6, 7(C), and/or 7(E).” Declaration of Fernando Pineiro

(“Pineiro Decl.”), ECF No. 11, Ex. 2.

Defendant filed a Motion for Summary Judgment on

February 25, 2016, arguing that it is exempt from

acknowledging the existence or non-existence of the records

under Exemptions 6, 7(C), and 7(E). Def.’s Mem. Supp. Mot.

Summ. J. (“Def.’s Mem. Supp”), ECF No. 11 at 5, 8.

Accordingly, Defendant attached an affidavit, the Pineiro

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Declaration, asserting that this response was necessary to

avoid disclosing information that could cause an

“unwarranted invasion of privacy” under Exemptions 6 and

7(C) or “could reasonably be expected to risk circumvention

of the law” under Exemption 7(E). Pineiro Decl., Ex. 2, ¶¶

20, 25.

II. Legal Framework

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56,

summary judgment should be granted if the moving party has

shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter

of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986); Waterhouse v. District of

Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In

determining whether a genuine issue of material fact

exists, the court must view all facts in the light most

favorable to the non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Freedom of Information Act

FOIA requires agencies to disclose all requested

agency records unless one of nine specific statutory

exemptions applies. 5 U.S.C. § 552(a). FOIA is designed to

“pierce the veil of administrative secrecy and to open

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agency action to the light of public scrutiny.” Dep’t of

Air Force v. Rose, 425 U.S. 352, 361 (1976) (citations

omitted). “Given the FOIA’s broad disclosure policy, the

United States Supreme Court has ‘consistently stated that

FOIA exemptions are to be narrowly construed.’” Wolf v.

CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Dep’t of

Justice v. Julian, 486 U.S. 1, 8 (1988)).

“FOIA’s ‘strong presumption in favor of disclosure

places the burden on the agency to justify the withholding

of any requested documents.” Dep’t of State v. Ray, 502

U.S. 164, 173 (1991). The government may satisfy its burden

of establishing its right to withhold information from the

public by submitting appropriate declarations and, where

necessary, an index of the information withheld. See Vaughn

v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973). “If an

agency’s affidavit describes the justifications for

withholding the information with specific detail,

demonstrates that the information withheld logically falls

within the claimed exemption, and is not contradicted by

contrary evidence in the record or by evidence of the

agency’s bad faith, then summary judgment is warranted on

the basis of the affidavit alone.” ACLU v. Dep’t of the

Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (“[A]n agency’s

justification for invoking a FOIA exemption is sufficient

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if it appears ‘logical’ or ‘plausible.’”) (internal

citations omitted).

III. Analysis

Defendant argues that acknowledging whether the

records exist would disclose the existence or non-existence

of the specific undercover operation, its subject matter,

and its personnel and thus “increase[ ] the likelihood that

subjects and potential subjects of investigations will

develop methods to obscure their criminal conduct, and

thereby circumvent law enforcement,” in contravention of

Exemption 7(E). Def.’s Mem. Supp. at 8-9. In response,

Plaintiff claims that Defendant “has not logically shown

how the acknowledgement of the records could be reasonably

expected to risk circumvention of the law” because he “has

not shown how acknowledging that a[n] undercover operation

exists would increase the knowledge of any supposed

criminal actors.” Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s

Opp’n”), ECF No. 12 at 13.

Information may be withheld under FOIA Exemption 7 if

it was compiled for law enforcement purposes. 5 U.S.C. §

552(b)(7). ICE HSI is an entity in the Department of

Homeland Security tasked with investigating a wide range of

criminal activity. Pineiro Decl. ¶¶ 11-12. The requested

records “would necessarily be ICE records compiled for the

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purpose of ICE’s responsibilities to enforce the civil and

criminal laws under its authorities.” Pineiro Decl. ¶ 24.

Exemption 7(E) exempts information collected for law

enforcement purposes that

would disclose techniques and procedures

for law enforcement investigations or

prosecutions, or would disclose

guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law.

5 U.S.C. § 552(b)(7)(E). In other words, Exemption 7(E)

“exempts from disclosure information that could increase

the risks that a law will be violated or that past

violators will escape legal consequences,” not merely

information that expressly “instruct[s] [potential

violators] how to break the law.” Mayer Brown LLP v. IRS,

562 F.3d 1190, 1193, 1194 (D.C. Cir. 2009) (emphases

omitted). It “only requires that the [agency] ‘demonstrate

[ ] logically how the release of [the requested]

information might create a risk of circumvention of the

law.’” Id. at 1194 (quoting PHE v. Dep’t of Justice, 983

F.2d 248, 251 (D.C. Cir. 1993)). Exemption 7(E) is properly

invoked for information and techniques that are secret and

“not generally known to the public.” Nat’l Sec. Archive v.

FBI, 759 F. Supp. 872, 885 (D.D.C. 1991); Jaffe v. CIA, 573

F. Supp. 377, 387 (D.D.C. 1983).

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“An agency asserts a Glomar response when it refuses

to confirm or deny the very existence of responsive

records.” 1 Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir.

2015). In the context of a FOIA exemption, “an agency may

issue a Glomar response . . . if the particular FOIA

exemption at issue would itself preclude the acknowledgment

of such documents.” Elec. Privacy Info. Ctr. v. NSA

(“EPIC”), 678 F.3d 926, 931 (D.C. Cir. 2012) (citing Wolf

v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). “In

determining whether the existence of agency records vel non

fits a FOIA exemption, courts apply the general exemption

review standards established in non-Glomar cases.” Wolf,

473 F.3d at 374. In the case of Exemption 7(E), therefore,

a Glomar response is appropriate when confirming or denying

the existence of the requested records “could reasonably be

expected to risk circumvention of the law.” See 5 U.S.C. §

552(b)(7)(E); EPIC, 678 F.3d at 931.

1 As Defendant explains, the Glomar response “take[s] its

name from the Hughes Glomar Explorer, a ship built (we now

know) to recover a sunken Soviet submarine, but disguised

as a private vessel for mining manganese nodules from the

ocean floor.” Def.’s Mem. Supp. at 3 (quoting Bassiouni v.

CIA, 392 F.3d 244, 246 (7th Cir. 2004) and citing Phillipi

v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976)).

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Defendant has demonstrated logically why its Glomar

response is appropriate under Exemption 7(E). The Pineiro

Declaration states:

If criminal actors were to learn that a

particular ICE HSI office is not engaged

in specific undercover operations, the

criminal actors could conclude that there

is less risk of certain activities being

discovered by law enforcement in that

jurisdiction. Likewise, if criminal

actors know that a particular office, and

particular personnel, [are] involved

with undercover operations, the criminal

actors could adjust their activities in

a way to avoid that office’s undercover

activities.

Pineiro Decl. ¶ 20. Like in Jaffe, where the government

appropriately invoked Exemption 7(E) as to portions of

documents that “assertedly relate to law enforcement

procedures not known to the public,” here, Defendant’s

Glomar response is authorized under Exemption 7(E) because

an undercover operation is not known to the public and

acknowledging its existence or non-existence would

therefore increase the risk of circumvention of the law.

See 573 F. Supp. at 387.

Plaintiff asserts that “Defendant has not shown how

acknowledging that a[n] undercover operation exists would

increase the knowledge of any supposed criminal actors.”

Pl.’s Opp’n at 13. Defendant correctly points out in its

reply that Plaintiff fails to “[rebut] the showing made by

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Defendant in the Pineiro declaration” and rather makes

“conclusory, single-sentence assertions.” Def.’s Reply at

4. The Pineiro Declaration provides a thorough explanation

of the potential 7(E) risks of acknowledging the existence

or non-existence of the undercover operation, and Plaintiff

does not offer any facts that indicate “contrary evidence

in the record” or “evidence of agency bad faith.” See ACLU,

628 F.3d at 619. Exemption 7(E) only requires a logical

demonstration of the risk that the law would be

circumvented, and Defendant has met this standard. See

Mayer Brown, 562 F.3d at 1194. Therefore, there is no

genuine dispute as to the appropriateness of Defendant’s

Glomar response under Exemption 7(E). 2

IV. Conclusion

For the foregoing reasons, the information sought by

Plaintiff is properly withheld under FOIA Exemption 7(E)

and the Glomar doctrine. Defendant’s Motion for Summary

Judgment is GRANTED.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

August 4, 2016

2 Because the parties’ dispute is fully resolved under

Exemption 7(E), the Court need not discuss the parties’

arguments under Exemptions 6 or 7(C).

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