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New York Civil Liberties Union v. Department of Homeland Security

March 10, 2011

NEW YORK CIVIL LIBERTIES UNION, PLAINTIFF,
v.
DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

OPINION AND ORDER

The plaintiff, the New York Civil Liberties Union, filed a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking documents related to the Lower Manhattan Security Initiative ("LMSI"), an initiative of the New York City Police Department ("NYPD") for which NYPD received grant funding from the defendant, the Department of Homeland Security ("DHS"). The LMSI involves the placement of surveillance cameras in Lower Manhattan. DHS and its component agencies have redacted certain documents sought by the plaintiff. The plaintiff filed this action seeking to compel production by the defendant.

At this stage of the litigation, after extensive production of documents by the Government and good-faith negotiations between the parties, only portions of 18 documents remain at issue. The defendant claims that the information withheld in all but one of the redactions is exempt from disclosure under FOIA exemption 7(E); it additionally claims that some of the information is exempt from disclosure under exemption 5. The defendant has submitted declarations from various officials of the Federal Emergency Management Agency ("FEMA") and the National Protection and Programs Directorate ("NPPD") averring that the redacted material falls within the stated FOIA exemptions. The defendant moves for partial summary judgment*fn1

regarding the plaintiff's request for the disclosure of the redacted material.

I.

An agency resisting a FOIA request "has the burden of proving the applicability of a FOIA exemption and . . . 'may meet its burden by submitting a detailed affidavit showing that the information logically falls within the claimed exemptions.'" Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 72-73 (2d Cir. 2009) (quoting Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996)). "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. at 73 (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

The redactions at issue contain 5 categories of information about the LMSI: (1) the location of cameras and license plate readers; (2) the particular types of equipment being used; (3) the timeline for implementing the LMSI, along with related goals, challenges, and milestones; (4) the number of assets (that is, buildings or other structure) protected by the LMSI; and (5) the particular assets to be protected, along with pertinent information about those assets.*fn2 This information comes, variously, from funding requests by the NYPD, grant and project databases maintained by DHS, an initial implementation plan, spreadsheets listing the protected assets, research papers, a Power Point presentation, and emails and memos exchanged among DHS officials or between NYPD and DHS.

The defendant asserts that nearly all of the information it has withheld from the plaintiff was properly withheld under exemption 7(E). Exemption 7(E) applies to "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . 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). The defendant claims that both prongs of exemption 7(E) apply: that disclosure would reveal "techniques and procedures for law enforcement investigations or prosecutions," and that disclosure would reveal "guidelines for law enforcement investigations or prosecutions" and could facilitate "circumvention of the law."

The plaintiff does not contest that the redacted material consists of "records or information compiled for law enforcement purposes," that it contains information about techniques, procedures, and guidelines for law enforcement investigations, or that the withheld information could be used to circumvent the law. Nor does the plaintiff claim that the redactions or the justifications given by the declarants were made in bad faith. Rather, the plaintiff argues that the information is already known - that a response to its FOIA requests would not increase the risk of circumvention of the law because "there has been public reporting about the LMSI and other NYPD surveillance initiatives that discusses exactly the types of information DHS has withheld as 'operational details' or asset-related information."*fn3 (Pl.'s Mem. at 16.) Additionally, the plaintiff claims that the techniques used by the LMSI are "routine and generally known," because they have been the subject of various publications and because many of the cameras can be observed and located by pedestrians. (Pl.'s Mem. at 19-20.) See Lamont v. Dep't of Justice, 475 F. Supp. 761, 780 (2d Cir. 1979) ("Congress did not intend that Exemption 7(E) apply to 'routine techniques or procedures which are generally known outside the Government . . . .'" (quoting Atty. Gen.'s Mem. on the 1974 Amendments to the Freedom of Information Act (1975) at 522)); accord Unidad Latina En Accion, 253 F.R.D. at 52.

The plaintiff bears the burden of showing that information is publicly available. Inner City Press, 463 F.3d at 245. The plaintiff has not met this burden because the publicly available information it has proffered is not "identical" to the information it seeks to obtain. Id. at 244; Unidad Latina En Accion, 253 F.R.D. at 53. The information withheld, as described by the defendant's declarants, is far more specific than any information that the plaintiff has shown to be publicly available. The location of license plate readers and cameras is the plainest example: although it is publicly known that the LMSI uses cameras and license plate readers, the specific locations of those devices are unknown, and their disclosure could unquestionably aid criminals in evading detection and thereby circumventing the law. Although private citizens may be able to identify the locations of some individual cameras by careful observation, the plaintiff has provided no reason to think that all or even a substantial portion of the cameras can be identified in this manner. Even if the location some cameras might be publicly knowable, the uncertainty concerning the other cameras is plausibly asserted to be a key component of their deterrent and disruptive effect. Cf. Maguire v. Mawn, No. 02 Civ. 2164, 2004 WL 1124673, at *3 (S.D.N.Y. May 19, 2004) ("Although the public may know that banks often employ bait money, the public does not know whether and how a specific bank employs bait money. . . . [C]onsidering that bait money is meant to be used clandestinely, the more information a potential robber may have on its use at a bank, the better they can plan and execute a robbery."); Coastal Delivery Corp. v. U.S. Customs Serv., 272 F. Supp. 2d 958, 964 (C.D. Cal. 2003) (holding that exemption 7(E) was properly invoked where a smuggler could use "the rate of examinations . . . to direct his merchandise to vulnerable ports," notwithstanding the public knowledge that examinations sometimes took place).

Similarly, although the mechanics of cameras and license plate readers are "generally known," the specific types of devices used by the LMSI, their capabilities, and their means of transmitting data are all unknown. Potential criminals can only guess at what devices are in use and how to circumvent them. Disclosure of the specific devices, the defendant's declarants plausibly assert, could identify limitations and vulnerabilities that could be exploited by the unscrupulous. See Piper v. U.S. Dep't of Justice, 294 F. Supp. 2d 16, 31 (D.D.C. 2003), aff'd as amended, 222 Fed. App'x 1 (D.C. Cir. 2007) (unpublished per curiam) ("[R]evealing the identity of the electronic device and its application would allow criminal types to evade the technique. . . . General, non-specific knowledge that the FBI possesses capabilities to electronically monitor the movement of automobiles, for example, or other moving objects is not the same as identifying the actual device, its function, and its capabilities.").

The defendant's declarations similarly support withholding the number and identity of assets protected by the LMSI, along with the details that DHS and the NYPD find salient about each and the goals and challenges of implementation. While the public may be able to guess at some of the specific buildings or infrastructure components that are of interest to DHS, the plaintiff has not identified any actual public disclosure of this information. Instead, it has cited three news stories that discuss particular assets protected at times by other NYPD initiatives. (See Pl.'s Mem. at 8 & nn. 28-30; June 25, 2010 Decl. of Matthew Faiella ("Faiella Decl.") Ex. M, P, Q.) None of these stories speak to DHS's concerns or the guidelines that it uses in funding the LMSI. The plaintiffs have therefore presented no evidence that could vitiate the declarants' plausible claims that "release of the number and name of assets would publicize with heightened preciseness the scope and breadth of the LMSI, and would identify to potential terrorists targets that have heightened security due to their significance. Disclosure of this information could also nullify the deterrent effect created by the absence of information concerning the scope of the surveillance and other security measures within lower Manhattan." (May 26, 2010 Decl. of Elizabeth Gary ("First Gary Decl.") at ¶ 33.) See Maguire, 2004 WL 1124673, at *3; Coastal Delivery, 272 F. Supp. 2d at 964; see also Unidad Latina En Accion, 253 F.R.D. at 53 (collecting cases).

Accordingly, the defendant's motion for summary judgment is granted as to all redactions ...


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