Today in a case between the Electronic Privacy Information Center and the United States Department of Homeland Security the United States Court of Appeals for the District of Columbia protected the Department's desire to prevent full disclosure of "Standard Operating Procedure 303" from the public record. SOP 303 is a protocol maintained by the Department of Homeland Security which is alleged to concern a plan for shutting down wireless networks during "critical emergencies."
Specifically SOP 303 is purported to concern:
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.”
A least to the extent it was described as such to the court. When the case was first heard in District Court, the District Court summarily decided in favor of EPIC to have the document released as the Department of Homeland Security failed to
“identify the individuals [endangered by disclosure of SOP 303] with some degree of specificity."
The Appeals court though in receiving the case elected to consider it de novo, discarding the lower court's determination and considering the case from the beginning. The Appelate court then turned to the precedent set by a case offering protection from disclosure to plans for preventing attacks at two dams on the US-Mexico border in order to protect SOP 303 from disclosure. The court went so far as to suggest the fact that no one knows who might be injured by passing a radio detonated bomb precludes the Department of Homeland Security from having to demonstrate any particular person would be harmed by the disclosure.
Full text of the decision is available as a pdf on Cryptome and reproduced in plaintext below:
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2014
Decided February 10, 2015
No. 14-5013
ELECTRONIC PRIVACY INFORMATION CENTER,
APPELLEE
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
APPELLANT
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 for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
Pursuant to the Freedom of
2
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,
3
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 “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
1
A v a i l a b l e
a t
http://www.dhs.gov/sites/default/files/publications/2006-2007%20
NSTAC%20Issue%20Review_0.pdf.
4
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 individual,” 5 U.S.C.
§ 552(b)(7)(F), or “would disclose techniques and procedures
for law enforcement investigations or prosecutions,” id.
§ 552(b)(7)(E).
On February 27, 2013, EPIC filed suit seeking the release
of SOP 303 in its entirety. See 5 U.S.C. § 552(a)(4)(B). The
parties filed cross motions for summary judgment. In support of
5
summary judgment, the Department submitted the Holzer
declaration asserting that SOP 303 was exempt from disclosure
under FOIA Exemption 7(F) because “[m]aking SOP 303 public
would, e.g., enable bad actors to insert themselves into the
process of shutting down or reactivating wireless networks by
appropriating verification methods and then impersonating
officials designated for involvement in the verification process.”
Holzer Decl. ¶ 26. Such bad actors would, Holzer stated, then
“be [able] to disable the protocol [and] freely use wireless
networks to activate . . . improvised explosive devices,” so
“there is a reasonable expectation that disclosure could
reasonably endanger individuals’ lives or physical safety.” Id.
Exemption 7(E) also applied because, according to Holzer, SOP
303 “contains a homeland security procedure primarily intended
to efficiently and effectively deter the triggering of
radio-activated improvised explosive devices,” and during such
critical emergencies “orderly deactivation of wireless networks
may be the best option for preventing and/or mitigating
explosions that would endanger life and property.” Id. ¶ 25.
Holzer repeated the “bad actor” explanation for non-disclosure,
adding that SOP 303’s production could “circumvent or interfere
with a law enforcement strategy designed to prevent activation
of improvised explosive devices by providing information about
when shutdown procedures are used and how a shutdown is
executed.” Id.
The district court granted summary judgment for EPIC.
EPIC, 999 F. Supp. 2d at 27, 29-34. Although concluding the
Department had satisfied Exemptions 7’s threshold requirement,
by showing that SOP 303 was compiled for law enforcement
purposes, id. at 29-30, the district court ruled that Exemption
7(F) was inapplicable because the Department had failed to
“identify the individuals [endangered by disclosure of SOP 303]
with some degree of specificity.” Id. at 32. The district court
acknowledged that an earlier version of Exemption 7(F) only
6
protected records from disclosure if their production would
endanger the life or physical safety of law enforcement
personnel in particular, see Pub. L. No. 93-502, sec. 2(b),
§ 552(b)(7), 88 Stat. 1561, 1563-64 (1974), and that in 1986
Congress had amended the exemption to allow non-disclosure
where production would endanger other persons, too, but
looking to the legislative history concluded Congress intended
only a modest expansion of the exemption. EPIC, 999 F. Supp.
2d at 32-34; see Pub. L. No. 99-570, sec. 1802(a), § 552(b)(7),
100 Stat. 3207, 3255-56 (1986). The district court also ruled
that Exemption 7(E) did not apply because SOP 303 was not a
technique or procedure for law enforcement investigations or
prosecutions. EPIC, 999 F. Supp. 2d at 30-31.
The Department appeals, and our review of the grant of
summary judgment is de novo, viewing the evidence in the light
most favorable to the non-moving party. Pub. Emps. for Envtl.
Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n,
U.S.-Mexico, 740 F.3d 195, 200 (D.C. Cir. 2014) (“PEER”).
II.
The FOIA “mandates that an agency disclose records on
request, unless they fall within one of nine exemptions.” Milner
v. Dep’t of Navy, 131 S. Ct. 1259, 1262 (2011); see 5 U.S.C.
§§ 552(a)(3)(A), (b)(1)-(9). The basic purpose of the FOIA
reflects “a general philosophy of full agency disclosure.” John
Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)
(quotation omitted); see also Nat’l Ass’n of Home Builders v.
Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). The FOIA’s
exemptions “are explicitly made exclusive” and “must be
narrowly construed.” Milner, 131 S. Ct. at 1262 (internal
quotation marks omitted). The burden is on the agency to justify
withholding the requested documents, and the FOIA directs
district courts to determine de novo whether non-disclosure was
7
permissible. U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 755 & n.6 (1989) (citing 5
U.S.C. § 552(a)(4)(B)). This court’s analysis of the scope of
Exemption 7 in PEER, 740 F.3d at 202-06, is highly instructive,
if not largely dispositive, here.
A.
To fall within FOIA Exemption 7, “documents must first
meet a threshold requirement: that the records were ‘compiled
for law enforcement purposes.’” PEER, 740 F.3d at 202-03
(quoting 5 U.S.C. § 552(b)(7)). “[T]he term ‘compiled’ in
Exemption 7 requires that a document be created, gathered, or
used by an agency for law enforcement purposes at some time
before the agency invokes the exemption.” Id. at 203 (citing
John Doe Agency, 493 U.S. at 155). “Law enforcement entails
more than just investigating and prosecuting individuals after a
violation of the law,” id. (emphasis in original), and “‘includes
. . . proactive steps designed to prevent criminal activity and to
maintain security.’” Id. (alteration in original) (quoting Milner,
131 S. Ct. at 1272 (Alito, J., concurring)).
Applying these principles, the court held in PEER that
emergency action plans and inundation maps created to prevent
attacks on two dams on the U.S.-Mexico border and to maintain
order and ensure dam security during emergencies satisfied
Exemption 7’s gateway requirement. Id. at 204. Here, too, the
Department has shown that it compiled SOP 303 for law
enforcement purposes. SOP 303 was developed after the 2005
bombings of London’s transportation system to address
deficiencies in the United States’ ability to address and respond
to such threats. The Holzer declaration explains that SOP 303
sets forth the steps taken to decide whether and when to disrupt
wireless networks during critical emergencies to, for example,
“efficiently and effectively deter the triggering of
radio-activated improvised explosive devices.” Holzer Decl.
8
¶ 25. As so described, SOP 303 was created to prevent crime
and keep people safe, which qualify as law enforcement
purposes. PEER, 740 F.3d at 202-04. SOP 303 meets
Exemption 7’s threshold test.
B.
Even if a record satisfies Exemption 7’s threshold test, an
agency may only withhold the record pursuant to Exemption
7(F) if the record’s release “could reasonably be expected to
endanger the life or physical safety of any individual.” 5 U.S.C.
§ 552(b)(7)(F); see PEER, 740 F.3d at 202. Our consideration
of Exemption 7(F)’s scope begins and ends with its text.
Milner, 131 S. Ct. at 1264, 1266-67.
Exemption 7(F) covers documents that “‘could reasonably
be expected to endanger the life or physical safety of any
individual.’” PEER, 740 F.3d at 202 (quoting 5 U.S.C.
§ 552(b)(7)(F)). The scope of the exemption is broadly stated,
see id. at 205, and consequently the government, once it has met
Exemption 7’s threshold test, “will ordinarily be able to satisfy
Exemption 7(F) for documents relating to critical infrastructure,
such as . . . emergency plans.” Id. at 206. Here, the Department
maintains that disclosure of SOP 303, according to the Holzer
declaration, “would enable bad actors to circumvent or interfere
with a law enforcement strategy designed to prevent activation
of improvised explosive devices” and “to insert themselves into
the process of shutting down or reactivating wireless networks
by appropriating verification methods and then impersonating
officials designated for involvement in the verification process.”
Holzer Decl. ¶¶ 25-26. That explanation shows that SOP 303’s
production could reasonably be expected to place many
individuals at risk and thus, the Department contends, SOP 303
falls within the scope of the plain text of Exemption 7(F).
EPIC maintains, however, that Exemption 7(F) requires the
9
Department to identify with some specificity the individuals
who would be endangered by SOP 303’s disclosure. It relies on
American Civil Liberties Union v. Department of Defense, 543
F.3d 59 (2d Cir. 2008) (“ACLU”), vacated on other grounds,
558 U.S. 1042 (2009). In that case, the Defense Department had
refused to release twenty-one photographs depicting abusive
treatment of detainees by United States soldiers in at least seven
different locations in Afghanistan and Iraq, invoking Exemption
7(F) on the ground that release of the photographs could
reasonably be expected to endanger the life and physical safety
of U.S. and Coalition troops, as well as civilians in Iraq and
Afghanistan. ACLU, 543 F.3d at 64-65. The Second Circuit
observed that “[t]he phrase ‘any individual’ . . . may be flexible,
but is not vacuous,” id. at 67, and concluded, in view of the
FOIA’s structure and the obligation of the court to construe its
exemptions narrowly, that it “cannot [be] read . . . to include
individuals identified solely as members of a group so large that
risks which are clearly speculative for any particular individuals
become reasonably foreseeable for the group.” Id. (emphases
added). The court acknowledged that individuals could be
identified in some other way than by name – “such as, for
example, being identified as family members or coworkers of a
named individual, or some similarly small and specific group.”
Id. at 67-68. But just being a member of a vast group was not
enough, see id., when the group referenced encompassed “a
population the size of two nations and two international
expeditionary forces combined.” Id. at 71. The court rejected
the argument “that the broad scope of the word ‘any’ relieve[d]
the[] [Defense Department] of the burden of identifying, even
roughly, an individual,” id. at 68, noting that the Supreme Court
has rejected wooden, uncritical capitulation to the word “any”
without analysis of surrounding language and relevant
legislative history. See id. at 68-69 (citing Small v. United
States, 544 U.S. 385 (2005); Gen. Dynamics Land Sys., Inc. v.
Cline, 540 U.S. 581 (2004)). The word “any” did not require
10
such a broad interpretation in the FOIA context. Id. at 68.
“[E]xemption 7(F), by conditioning its application on a
reasonable expectation of danger to an individual, excludes from
consideration risks that are speculative with respect to any
individual.” Id. at 71 (emphasis in original).
Our decision in PEER does not foreclose this interpretation
of Exemption 7(F), for in PEER the court had no occasion to
decide whether it agreed with it. The court stated that “even if
we agreed with the Second Circuit’s reading of Exemption 7(F),
. . . the [agency] would prevail even under the Second Circuit’s
approach.” PEER, 740 F.3d at 206 (emphasis added). Unlike
in PEER, however, here the Department does not point to a
“particularized threat to a discrete population,” id., but rather
maintains its non-production falls within Exemption 7(F)
because release of SOP 303 would endanger anyone in the
United States who happens to be near an unexploded bomb or
frequents high value targets. In the Department’s view, it would
be anomalous if it could withhold SOP 303 if disclosure poses
a danger to a small group of specifically identifiable people but
not where many or most people would be endangered by
production. Furthermore, the Department contends that, even
under the Second Circuit’s interpretation, it has identified the
individuals most likely to be at risk with the requisite degree of
specificity because “there are identifiable groups who are more
likely to be harmed” from SOP 303’s disclosure, including
“people near unexploded bombs, people who frequent highvalue targets, and bomb squads and other first responders.”
Appellant’s Br. 19. If viewed without regard to SOP 303’s
requirement that there be a critical emergency for a shutdown to
take place, then the Department’s interpretation may not accord
with the Second Circuit’s approach. See ACLU, 543 F.3d at 71.
Significantly, however, the context addressed by the Second
Circuit involved “vast” populations and the court disclaimed that
it was confronting a case where there was a showing of a
11
reasonable expectation of danger with respect to one or more
individuals, see id., which we conclude there is here.
The court must both narrowly construe the FOIA’s
exemptions and apply the statute’s plain text. See Milner, 131
S. Ct. at 1262, 1264, 1267; see also John Doe Agency, 493 U.S.
at 152-53; FBI v. Abramson, 456 U.S. 615, 630-31 (1982). The
Supreme Court has rebuffed lower courts’ attempts to graft
atextual glosses on the FOIA. See Milner, 131 S. Ct. at 1267; cf.
CIA v. Sims, 471 U.S. 159, 169 & n.13 (1985). The FOIA
provides no textual basis for requiring the Department, for
purposes of Exemption 7(F), to identify the specific individuals
at risk from disclosure, and to do so would be to “tak[e] a red
pen” to the words chosen by Congress that are to be understood
to have their ordinary meaning, Milner, 131 S. Ct. at 1264,
absent indication to the contrary. Congress’ use in Exemption
7(F) of the word “any” is instructive. Generally, “‘the word
‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’’” Ali v. Fed. Bureau of
Prisons, 552 U.S. 214, 219 (2008) (quoting United States v.
Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New
International Dictionary 97 (1976))). Although there are
statutory contexts in which “any” does not mean “any,” see
Small, 544 U.S. at 388-89, 391-93; cf. Howard v. Pritzker, —
F.3d — , Nos. 12-5370 & 12-5392, slip op. at 10-11 (D.C. Cir.
Jan. 6, 2015), in the context of Exemption 7(F) the word “any”
demands a broad interpretation. Congress could have, but did
not, enact a limitation on Exemption 7(F), such as “any
specifically identified individual.” See Sims, 471 U.S. at 169
n.13. By contrast, in the Privacy Act Congress afforded special
treatment to certain law enforcement records associated with an
“identifiable individual.” See 5 U.S.C. §§ 552a(a)(6), (j)(2)(B),
(l)(2); cf. Sims, 471 U.S. at 169 n.13. The language of
Exemption 7(F), which concerns danger to the life or physical
safety of any individual, suggests Congress contemplated
12
protection beyond a particular individual who could be
identified before the fact. Exactly who will be passing near an
unexploded bomb when it is triggered somewhere in the United
States may often be unknowable beyond a general group or
method of approach (on foot, by car, etc.), but the critical
emergency itself provides a limit (e.g., a situs on the London
transportation system). To be effective in protecting those
individuals endangered in a critical emergency, the Department
advises, SOP 303 relies on protocols that could be corrupted if
made available to the public.
EPIC maintains that Congress’ choice to condition
Exemption 7(F)’s availability on danger to an individual, rather
than danger in general, indicates a requirement that the subject
of the danger be identified with at least reasonable specificity.
And according to EPIC, to reject its interpretation would read
“individual” out of the statute, see ACLU, 543 F.3d at 70,
thereby violating the anti-superfluity canon. See Milner, 131 S.
Ct. at 1268; Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C. Cir.
1995). But understood in context, the phrase “any individual”
makes clear that Exemption 7(F) now shields the life or physical
safety of any person, not only the law enforcement personnel
protected under the pre-1986 version of the statute. The district
court took note of the 1986 amendment but went beyond the
exemption’s plain text to impose a requirement divorced from
the language Congress enacted. See EPIC, 999 F. Supp. 2d at
32-34. Contrary to EPIC’s suggestion that Congress could have
made explicit that the government need not identify the
individuals at risk with specificity, “the mere possibility of
clearer phrasing cannot defeat the most natural reading of a
statute.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132
S. Ct. 1670, 1682 (2012).
EPIC implies that its interpretation of Exemption 7(F) is
rooted in the exemption’s command that disclosure “could
13
reasonably be expected to endanger the life or physical safety
of any individual.” 5 U.S.C. § 552(b)(7)(F) (emphasis added).
But EPIC does not explain why the release of records or
information could reasonably be expected to endanger the life or
physical safety of any individual only where the individual or
individuals at risk can be identified specifically. Release of SOP
303, according to the Department, poses a concrete and
non-speculative danger to numerous albeit unspecified
individuals, see Holzer Decl. ¶¶ 25-26, and the Department
thereby asserted a direct nexus between disclosure and a
reasonable possibility of personal harm. See PEER, 740 F.3d at
206. The attacks in London that triggered the establishment of
SOP 303 illustrate, as noted, that before-the-fact individual
identification is unlikely to be practical. To the extent EPIC is
suggesting that the Department has not satisfied Exemption
7(F)’s risk threshold, that suggestion is met by “[t]he confluence
of Exemption 7(F)’s expansive text and [the court’s] generally
deferential posture when [it] must assess national security
harms.” Id. at 205 (citing Milner, 131 S. Ct. at 1272 (Alito, J.,
concurring)).
EPIC suggests that if there is a real danger from disclosure,
then the Department should classify SOP 303, bringing it within
FOIA Exemption 1, which protects materials that are classified
pursuant to certain Executive orders. See 5 U.S.C. § 552(b)(1).
The Second Circuit accepted a version of this argument in
ACLU, explaining that
[i]t would be anomalous if an agency that could not
meet the requirements for classification of national
security material could, by characterizing the material
as having been compiled for law enforcement
purposes, evade the strictures and safeguards of
classification and find shelter in [E]xemption 7(F)
simply by asserting that disclosure could reasonably be
14
expected to endanger someone unidentified somewhere
in the world.
543 F.3d at 73. But the possibility of classification and the
concomitant protection from disclosure provided by Exemption
1 do not render Exemption 7(F) superfluous. The Department
has plausibly identified “practical barriers” to classifying SOP
303, including the fact that it “must be shared with federal law
enforcement officials, [S]tate homeland security officials, and
national cellular carriers.” Reply Br. 6. Nor does adhering to
the plain text of Exemption 7(F) eviscerate Exemption 1, which
applies even to records not compiled for law enforcement
purposes.
The NCC is presumed to be aware of the need to restore
service promptly, particularly in an age in which wireless
communication is a critical component of peoples’ lives. See
Riley v. California, 134 S. Ct. 2473, 2484, 2489 (2014); United
States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J.,
concurring); id. at 963 (Alito, J., concurring in the judgment).
It remains for EPIC and other litigants to seek additional judicial
scrutiny by requesting findings on specific matters or in camera
review. At some point, as our precedent indicates, the element
of trust takes over where an agency has filed a sufficiently
specific sworn declaration by a knowledgeable official. See
Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir.
2008); King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C.
Cir. 1987). Even if SOP 303’s shutdown protocol is a matter of
significant public interest, balancing when the value of
producing certain categories of documents outweighs the
government’s generic justifications for non-disclosure is what
the Congress has done in enacting and amending the FOIA. See
Milner, 131 S. Ct. at 1265 n.5; PEER, 740 F.3d at 198; Pratt v.
Webster, 673 F.2d 408, 416 & n.17 (D.C. Cir. 1982).
15
Finally, to the extent EPIC looks to Exemption 7(F)’s
legislative history, the court’s choice when “presented, on the
one hand, with clear statutory language and, on the other, with
dueling [congressional statements],” is foreordained. See
Milner, 131 S. Ct. at 1267. Prior to the 1986 FOIA
amendments, Exemption 7(F) protected records the release of
which would “endanger the life or physical safety of law
enforcement personnel.” See Pub. L. No. 93-502, sec. 2(b),
§ 552(b)(7), 88 Stat. 1561, 1563-64 (1974). The exemption did
not cover witnesses, interviewees, victims, informants, or
families of law-enforcement personnel and thus, for example,
undermined law enforcement officers’ ability to enlist
informants. 131 Cong. Rec. 253 (daily ed. Jan. 3, 1985)
(statement of Hon. Carol E. Dinkins, Deputy U.S. Att’y Gen.).
To remedy this omission, the Executive Branch asked that
Exemption 7(F) be amended. Id. In response, Congress
expanded Exemption 7(F) to protect law-enforcement
documents if their release would endanger “any individual.” 5
U.S.C. § 552(b)(7)(F); see Pub. L. No. 99-570, sec. 1802(a),
§ 552(b)(7), 100 Stat. 3207, 3255-56 (1986).
EPIC views Congress’ amendment of Exemption 7(F) in
1986 to bring only witnesses, interviewees, victims, informants,
and families of law-enforcement personnel within the
exemption. There are statements of Members of Congress and
the Executive Branch that reflect concern about those groups’
prior omission. See 130 Cong. Rec. 3,502 (daily ed. Feb. 27,
1984) (statement of Sen. Hatch) (“The bill would . . . extend[]
[E]xemption 7(F) to include such persons as witnesses, potential
witnesses, and family members whose personal safety is of
central importance to the law enforcement process.”); 130 Cong.
Rec. 3,520 (daily ed. Feb. 27, 1984) (statement of Sen. Leahy)
(describing certain changes to the FOIA as “narrowly aimed so
that they will not interfere with the public’s right to know where
law enforcement is not seriously jeopardized”). Other
16
Members’ statements viewed the amendment to Exemption 7(F)
as relatively broad. For instance, Senator Hatch, the principal
sponsor of the amendment, remarked that the changes to
Exemption 7 were “intended to . . . ease considerably a Federal
law enforcement agency’s burden in invoking” it. 132 Cong.
Rec. 31,424 (daily ed. Oct. 15, 1986). Although General
Dinkins stated that the language of Exemption 7 would be
“modified slightly – not revised wholesale,” 131 Cong. Rec. 248,
she also expressed concern that the prior version of the
exemption did not protect “the life of any other person” besides
law enforcement personnel. Id. at 253. And her explanation
that the 1986 amendments expanded Exemption 7(F) “to include
such persons as witnesses, potential witnesses, and family
members,” id. (emphasis added), is reasonably understood as
illustrative not exclusive. In any event, what Congress enacted
was broad language that was not limited to protection of law
enforcement personnel and related persons. See PEER, 740 F.3d
at 205. “We will not . . . allow[] ambiguous legislative history
to muddy clear statutory language.” Milner, 131 S. Ct. at 1266.
“All we hold today is that Congress has not enacted the FOIA
exemption [EPIC] desires. We leave to Congress, as is
appropriate, the question whether it should do so.” Id. at 1271.
Accordingly, we hold that the Department permissibly
withheld much, if not all of SOP 303, because its release, as
described in the Holzer declaration, could reasonably be
expected to endanger individuals’ lives or physical safety, and
we reverse the grant of summary judgment. As such, we need
not now decide whether Exemption 7(E) applies. See Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925
(D.C. Cir. 2003). We will remand the case, however, for the
district court to address, in the first instance, the issue of
segregability, see 5 U.S.C. § 552(b); Stolt-Nielsen Transp. Grp.
Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008);
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
17
1022, 1028 (D.C. Cir. 1999), leaving it to determine “whether
more detailed affidavits are appropriate or whether an alternative
such as in camera review would better strike the balance
between protecting [exempted] information and disclosing
nonexempt information as required by the FOIA.” Stolt-Nielsen,
534 F.3d at 734-35 (alteration in original) (quotation omitted);
see 5 U.S.C. § 552(a)(4)(B); Neill v. U.S. Dep’t of Justice by
Reno, No. 93-5292, 1994 WL 88219, at *1 (D.C. Cir. Mar. 9,
1994).