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Electronic Privacy Information Center v. United States Dep't of Homeland Security

United States Court of Appeals, District of Columbia Circuit

February 10, 2015

ELECTRONIC PRIVACY INFORMATION CENTER, APPELLEE
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, APPELLANT

Argued: December 11, 2014.

Page 519

Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-00260).

Adam C. Jed, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, U.S. Attorney, and Sharon Swingle, Attorney.

Marc Rotenberg argued the cause and filed the brief for appellee.

Before: ROGERS, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.

OPINION

Page 520

Rogers, Circuit Judge:

Pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, the Electronic Privacy Information Center (" EPIC" ) requested release by the Department of Homeland Security of Standard Operating Procedure 303 (" SOP 303" ), which the Department describes as a protocol for shutting down wireless networks during critical emergencies. When the Department released only a heavily redacted version, EPIC successfully sued to compel disclosure. See Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec., 999 F.Supp.2d 24 (D.D.C. 2013) (" EPIC" ). The Department appeals, invoking FOIA Exemption 7(F) on the ground that production of SOP 303 could reasonably be expected to endanger many individuals' lives or physical safety. Upon de novo review, we hold that the plain text of Exemption 7(F) protects law enforcement records the disclosure of which " could reasonably be expected to endanger the life or physical safety of any individual," 5 U.S.C. § 552(b)(7)(F), during a critical emergency, without requiring the withholding agency to specifically identify the individuals who would be endangered, and that much if not all of SOP 303 is exempt from disclosure. Accordingly, we reverse the grant of summary judgment to EPIC, and we remand the case for the district court to determine whether any reasonably segregable portions of SOP 303 can be disclosed.

I.

SOP 303 is an " Emergency Wireless Protocol" that codifies a " unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies such as the threat of radio-activated improvised explosive devices." Decl. James Holzer, I, Senior Dir. FOIA Opns., Privacy Off., Dep't Homeland Sec., ¶ 20, June 28, 2013; see Nat'l Sec. Telecomm. Advisory Comm., Termination of Cellular Networks During Emergency Situations, NSTAC Issue Review 2006-07, at 139 (2007) (" NSTAC Issue Review" ).[1] After the 2005 bombings of the transportation system in London, England, in which cellular telephones were used to detonate explosives remotely, the President's National Security Telecommunications Advisory Committee identified the need for a " single governmental process to coordinate determinations of if and when cellular shutdown activities should be undertaken in light of the serious impact on access by the public to emergency communications services during these situations and the need to preserve the public trust in the integrity of the communications infrastructure." Holzer Decl. ¶ 20; see also NSTAC Issue Review, at 139. The National Coordinating Center for Communications (" NCC", formerly known as the NCC for Telecommunications), part of the Department's National Cybersecurity and Communications Integration Center, developed SOP 303, under which the NCC " function[s] as the focal point for coordinating any actions leading up to and following the termination of private wireless network connections." NSTAC Issue Review, at 139. State Homeland Security Advisors, or their designees, or representatives of the Department's Homeland Security Operations Center make the decision to suspend cellular service. Id. Once one of these entities requests a shutdown, the NCC " operate[s] as an authenticating body, notifying the carriers in the affected area of the decision." Id. The NCC also

Page 521

" ask[s] the requestor a series of questions to determine if the shutdown is a necessary action." Id. " After making the determination that the shutdown is no longer required, the NCC . . . initiate[s] a similar process to reestablish service." Id.

On July 10, 2012, EPIC submitted a FOIA request to the Department seeking the full text of SOP 303, the series of questions used to determine whether a shutdown is necessary, and any related protocols or guidelines. The Department initially responded that it had conducted a comprehensive search, but was unable to locate or identify any responsive records. Following an administrative appeal, however, the Department conducted another search and located one responsive record: SOP 303. See Nat'l Coordinating Ctr. for Telecomm. Standard Operating Procedure 303 (Sept. 25, 2009) (" SOP 303" ). The SOP included the full text of the predetermined series of questions that determines if a shutdown is necessary, and the executing protocols related to the implementation of SOP 303. Holzer Decl. ¶ 21.

Pursuant to FOIA Exemptions 6 and 7(C), which protect certain personal information, see 5 U.S.C. § § 552(b)(6), (b)(7)(C), the Department withheld from EPIC the names, telephone numbers, and email addresses for state homeland security officials contained in SOP 303. Aside from a sentence explaining that SOP 303 " provides detailed procedures for the [NCC] to coordinate requests for the disruption of cellular service," certain subsection headings, and the title of Appendix E (" External Agency Cellular Service Disruption Implementation Instructions" ), essentially all of SOP 303 was withheld pursuant to FOIA Exemptions 7(F) and 7(E), which permit non-disclosure of certain law-enforcement information that, respectively, " could reasonably be expected to endanger the life or physical safety of any ...


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