                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


ELECTRONIC PRIVACY INFORMATION
CENTER,

          Plaintiff,

     v.
                                   Civ. Action No. 14-317 (EGS)

UNITED STATES DRUG
ENFORCEMENT AGENCY,

          Defendant.


                       MEMORANDUM OPINION

     This case concerns the Hemisphere Project (“Hemisphere”), a

program utilized by multiple government agencies, that collects

daily data on telephone calls. The data is retained in a

database and used by the United States Drug Enforcement Agency

(“the DEA”), in cooperation with private corporations, to combat

illicit drug activity. Although the existence of Hemisphere was

widely reported in 2013, details of the program remain unknown.

     Plaintiff Electronic Privacy Information Center (“EPIC”)

filed this lawsuit seeking injunctive relief following the DEA’s

response to EPIC’s Freedom of Information Act (“FOIA”) requests.

Compl., ECF No. 1 ¶¶ 1-2. The primary FOIA requests at issue in

this case sought the government’s analysis of legal and privacy

issues related to Hemisphere. The DEA ultimately responded to

the request with 319 documents: 39 were released in their
entirety, 104 withheld in their entirety, and 176 released in

part. The DEA claimed several FOIA exemptions as justification

for the withheld documents and portions. Relevant to the pending

motion, the DEA claimed FOIA Exemption 7(E), which allows the

government to withhold records or information compiled for a law

enforcement purpose, for 11 categories of documents. See 5

U.S.C. § 552(b)(7)(E).

     The parties filed cross-motions for summary judgment and

the Court denied EPIC’s motion in part finding that, inter alia,

the DEA’s search for documents was reasonable and that the DEA

properly withheld certain documents under FOIA Exemption 5. See

Elec. Privacy Info. Ctr. (“EPIC”) v. United States Drug Enf't

Agency, 192 F. Supp. 3d 92, 100 (D.D.C. 2016). The Court also

denied the DEA’s motion in part finding that the DEA failed to

sufficiently justify its reliance on FOIA Exemption 7(E). Id. at

111–116. The Court ordered the DEA to either produce the

documents to EPIC, supplement the record with additional

affidavits and authority justifying its withholdings, or the

produce documents for the Court’s in camera review. Id. at 115–

16. The Court also ordered the DEA to produce documents related

to a particular category for in camera review. Id. at 114. The

Court deferred ruling on whether the DEA had processed and

released all reasonably segregable information. See id. at 116

n.14.


                                2
     The parties have filed supplemental briefs on the issues

remaining to be resolved by the Court and the DEA partially

withdrew its motion for summary judgment, leaving only two

categories of withholdings in dispute. See generally Notice of

Partial Withdrawal of Def.’s Mot. for Summ. J. (“Not. Of Partial

Withdrawal”), ECF No. 41. Accordingly, the only issues before

this Court are whether: (1) the DEA has properly invoked FOIA

Exemption 7(E) over the two remaining categories of documents;

and (2) the DEA has met its obligation to segregate all

unprotected information from its withheld documents.

     Upon consideration of the motions, the responses and

replies thereto, the applicable law, the entire record, and for

the reasons stated in this Memorandum Opinion, defendant’s

motion for summary judgment is GRANTED and plaintiff’s cross-

motion for summary judgment is DENIED.

I. Background

     The Court has already described the facts of this case in

detail in its prior Memorandum Opinion. See EPIC, 192 F. Supp.

3d 92 (D.D.C. 2016). The Court will briefly outline the

surveillance program which gave rise to the FOIA request, the

DEA’s response to the request, and the procedural history of

this case.

     A. The Hemisphere Program

     Hemisphere is a program that grants law enforcement


                                 3
officials access to an AT&T database containing “decades of

American’s phone calls.” Compl. ¶ 6 (quoting Drug Agents Use

Vast Phone Trove, Eclipsing N.S.A.’s, New York Times, Sept. 1,

2013). Operational since 2007, Hemisphere adds nearly four

billion calls to its database daily, including details about

caller location. Id. ¶ 9. AT&T manages the database and the DEA

pays AT&T staff to provide law enforcement agents with direct

access to the call information. Id. ¶ 7. According to the New

York Times, Hemisphere is funded through the White House’s

Office of National Drug Control Policy. Id. ¶ 11.

     B. EPIC’s November 2013 FOIA Request and the DEA’s Response

     EPIC’s November 15, 2013 FOIA request sought four

categories of documents from the DEA:

     (1)   All Hemisphere training modules, request
           forms, and similar final guidance documents
           that are used in the day-to-day operation of
           the program;

     (2)   Any analyses, memos, opinions, or other
           communications that discuss the legal basis of
           the program;

     (3)   Any analyses, memos, opinions, or other
           communications that discuss the privacy impact
           of the program; and

     (4)   Any presentations, analyses, memos, opinions
           or other    communications for Congress that
           cover Hemisphere’s operations.




                                 4
Id. ¶ 14. 1

     The DEA identified six offices at its headquarters likely to

have responsive records: The Operations Division, the Intelligence

Division, the Office of Training, the Office of Chief Counsel, the

Office of Information Systems, and the Office of Congressional and

Public Affairs. See Def.’s Mem. Supp. Summ. J., Decl. of

Katherine L. Myrick (“Myrick Decl.”), ECF No. 15-3 ¶ 16. The

DEA’s Atlanta, Houston, Los Angeles, and Washington, D.C.

division offices were also asked to search for responsive

records. Id. In July 2014, the DEA responded to EPIC’s FOIA

request with 319 responsive documents. Id. ¶ 11. Of those

documents, 39 were released in full, 176 were released in part

and withheld in part, and 104 were withheld in full. Id.

     To justify its withholdings, the DEA relied on FOIA

exemptions 5, 6, 7(C), 7(D), 7(E), and 7(F). 5 U.S.C.

§ 552(b)(5);(6);(7)(C)–(F). Most relevant to this case, the DEA

has asserted Exemption 7 for 11 categories of documents. Def.’s

Mem. Suppl. Summ. J., ECF No. 15 at 18-23. 2 EPIC challenged three




1 EPIC’s first FOIA request, sent September 25, 2013, was
challenged by the DEA as not reasonably describing the requested
records, in violation of FOIA standards and Department of
Justice regulations. Compl. ¶¶ 22-24. EPIC modified its letter
and re-sent the requests in November 2013. Id.
2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.

                                5
of those categories: (1) names of private companies that assist

with the operation of Hemisphere (Categories 7D-1 and 7E-6); 3 (2)

documents that reveal how the DEA secures cooperation of

entities instrumental to Hemisphere’s operation (Category 7E-5);

and (3) names of other law enforcement agencies with access to

Hemisphere (Category 7E-11). Pl.’s Opp’n, ECF No. 18 at 28-38.

     C. Procedural History

     In a Memorandum Opinion dated June 24, 2016 the Court ruled

on the parties’ cross-motions for summary judgment. The Court

denied EPIC’s motion in part finding that the DEA’s search was

reasonable and that the DEA properly withheld certain documents

under FOIA Exemption 5. See EPIC, 192 F. Supp. 3d at 100. The

Court denied the DEA’s motion in part, finding that the DEA

failed to sufficiently justify its reliance on FOIA exemption

7(E). Id. The Court ordered the DEA to either produce the

documents, supplement the record with additional affidavits and

authority justifying its withholdings, or produce documents for

the Court’s in camera review. Id. at 115–16. The Court also

ordered the DEA to produce documents related to a particular

category for in camera review. Id. at 114.




3 The DEA has withdrawn its motion for summary judgment related
to this category and has produced the information to EPIC. See
Not. Of Partial Withdrawal, ECF No. 41; see also Def.’s Not. of
Filing Revised Release Pages in Connection with Notice of
Partial Withdrawal, ECF No. 42.

                                6
     The parties have filed supplemental briefs related to the

issues remaining to be resolved by the Court. In the DEA’s

submission it has provided the documents for in camera review,

and filed an ex parte in camera affidavit from Douglass W.

Poole, DEA Chief of Intelligence, explaining its justification

for the exemption. See Redacted Decl. Douglass H. W. Poole

(“Redacted Poole Decl.”), ECF No. 36–1. The DEA has also filed a

redacted copy of these documents on the public record. Id.

Additionally, the DEA partially withdrew its motion for summary

judgment for all but two of the 11 categories of documents for

which it originally claimed the exemptions. See generally Not.

Of Partial Withdrawal, ECF No. 41. Accordingly, the DEA has

produced to EPIC revised versions of previously partially

withheld documents. See Def.’s Not. of Filing Revised Release

Pages in Connection with Not. of Partial Withdrawal, ECF No. 42.

     The Court’s June 2016 Memorandum Opinion and the withdrawal

of the DEA’s arguments concerning categories 7D-1 and 7E-6 leave

two categories of withholdings in dispute:(1) category 7E-5,

information that could reveal what specific law enforcement

agencies have access to Hemisphere apart from DEA, whose use of

Hemisphere has been publicly confirmed, see Def.’s Mem. in Supp.

of Mot. for Summ. J., ECF No. 15-2 at 29, and (2) category 7E-

11, documents detailing the means through which Hemisphere

secures the cooperation of entities instrumental to Hemisphere,


                                7
id. at 30–31. Accordingly, the only issues before this Court are

whether the DEA has properly invoked FOIA Exemption 7(E) over

the documents in categories 7E-5 and 7E-11 and whether the DEA

has met its obligation to segregate all unprotected information

from its redactions.

II. Standard of Review

     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. Fed. R. Civ.

P. 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). In

determining whether a genuine issue of material fact exists, a

court must view all facts in the light most favorable to the

non-moving party. See Mastushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). FOIA cases are typically

and appropriately decided on motions for summary judgment. Gold

Anti-Trust Action Comm. Inc. v. Bd. Of Governors of Fed. Reserve

Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011) (citations

omitted). In ruling on cross-motions for summary judgment, a

court shall grant summary judgment only if one of the moving

parties is entitled to judgment as a matter of law upon material

facts that are not genuinely disputed. Shays v. FEC, 424

F.Supp.2d 100, 109 (D.D.C.2006); Winston & Strawn LLP v.


                                8
F.D.I.C., No. 061120, 2007 WL 2059769, at *3 (D.D.C. July 13,

2007).

     B. The Freedom of Information Act

     FOIA requires agencies to disclose all requested agency

records, unless one of nine statutory exemptions applies. 5

U.S.C. § 552 (a), (b). Congress enacted FOIA to “pierce the veil

of administrative secrecy and to open agency action to the light

of public scrutiny.” Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.

Cir. 2007)(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976)). Because disclosure rather than secrecy is the “dominant

objective of the Act,” the statutory exemptions are “narrowly

construed.” See McKneely v. DOJ, 132 F. Supp. 3d 44, 49 (D.D.C.

2015)(internal quotation marks and citations omitted).

     The government bears the burden of justifying

nondisclosure, either through declarations or an index of

information withheld. See, e.g., Consumers’ Checkbook, 554 F.3d

1046, 1050 (D.C. Cir. 2009); Vaughn v. Rosen, 484 F.2d 820, 826

(D.C. Cir. 1973)(holding that an indexing system was necessary

in FOIA cases to “(1) assure that a party’s right to information

is not submerged beneath governmental obfuscation and

mischaracterization, and (2) permit the Court system effectively

and efficiently to evaluate the factual nature of disputed

information.”).

     Agency affidavits and declarations must be “relatively


                                9
detailed and non-conclusory.” SafeCard Services v. SEC, 926 F.2d

1197, 1200 (D.C. Cir. 1991)(internal quotation marks and

citation omitted). Such affidavits or declarations are accorded

“a presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of

other documents.” Id. (internal quotation marks and citation

omitted). Courts must conduct a de novo review of the record and

may grant summary judgment solely on the basis of information

provided by the department or agency in affidavits or

declarations that describe the documents and justifications for

nondisclosure with “reasonably specific detail.” Cause of Action

v. Federal Trade Com’n, 961 F. Supp. 2d 142, 153 (D.D.C.

2013)(quoting Military Audit Project v. Casey, 656 F. 2d 724,

738 (D.C. Cir. 1981)).

III. Analysis

     EPIC challenges the two remaining categories of exempted

documents: (1) names of other law enforcement agencies with

access to Hemisphere (Category 7E5); and (2) documents that

reveal how the DEA secures cooperation of entities instrumental

to Hemisphere’s operation (Category 7E11). See Def.’s Not. of

Partial Withdrawal of Mot. for Summ. J., ECF No. 41 at 4–5. EPIC

also challenges the DEA’s reliance on ex parte in camera

affidavits. See Pl.’s. Suppl. Resp., ECF No. 37 at 2–3. The

Court first discusses the propriety of the DEA’s use of such


                               10
affidavits, and then turns to DEA’s reliance on FOIA Exemption

7(E). Last, the Court discusses the DEA’s obligation to provide

any reasonably segregable non-exempt portion of the withheld

documents to EPIC.

     A. DEA’s Use of In Camera Affidavit

     As an initial matter, EPIC argues that the DEA improperly

relied on an ex parte declaration to support its justification

for its reliance on FOIA Exemption 7(E). See Pl.’s. Suppl.

Resp., ECF No. 37 at 2. EPIC is correct that courts are hesitant

to accept in camera ex parte affidavits in FOIA cases. See

Armstrong v. Exec Officer of the President, 97 F.3d 575, 580

(D.C. Cir. 1996)(stating the “use of in camera affidavits has

generally been disfavored.”). “Although in camera review of

withheld documents is permissible (and even encouraged), [the

D.C. Circuit has] held that a trial court should not use in

camera affidavits unless necessary and, if such affidavits are

used, it should be certain to make the public record as complete

as possible.” Lykins v. DOJ, 725 F.2d 1455, 1465 (D.C. Cir.

1984)(citations omitted). To that end, a district court must

satisfy itself that the use of the affidavit is absolutely

necessary, justified to the greatest extent possible on the

public record, and must make available as much of the in camera

submission to the adverse party as possible. Id. Ultimately, the

“use of such affidavits is at the discretion of the trial


                               11
court.” Id.

     The Court is satisfied that the DEA’s use of the Poole

declaration--submitted in camera and ex parte--was appropriate

in this case. First, a redacted version of the Poole declaration

was filed on the public docket, and this redacted version

explains the justifications for why the DEA submitted it in

camera. See Redacted Poole Decl., ECF No. 36-1. The declaration

explains that public disclosure would reveal non-public

sensitive DEA information not related to the FOIA request. Id.

Second, the bulk of the redacted information relates to the

exhibits this Court ordered the DEA to file in camera because

the only way the Court could ascertain whether the exemption was

justified was by reviewing the documents themselves. EPIC, 192

F. Supp. 3d at 114. Accordingly, the Court finds the use of the

in camera declaration was absolutely necessary to determine

whether the DEA properly claimed FOIA Exemption 7(E) for its

withholdings.

     However, the DEA’s notice that it has partially withdrawn

its motion for summary judgment and its subsequent filing of

revised documents in connection with that notice has now

rendered public some of the sensitive information in the

declaration. See Def.’s Not. of Partial Withdrawal of Mot. for

Summ. J., ECF No. 41 at 3. Although the DEA’s motion and

subsequent disclosure of revised documents arguably meet the


                               12
requirement that as much of the in camera submission as possible

be made available to the adverse party, in an abundance of

caution, the Court will order the DEA to un-redact portions of

the affidavit that are no longer sensitive in light of its new

disclosures to EPIC.

     In short, because the use of the in camera declaration was

absolutely necessary, and justified on the public record, the

DEA’s submission was proper. However, in light of the

information the DEA made public after the submission of the

affidavit, the DEA is hereby ORDERED to file a revised

declaration with new redactions that are consistent with its

recent disclosures to EPIC.

     B. FOIA Exemption 7(E)

     The Court next turns to the DEA’s justifications for

withholdings of the two categories of documents in this case:

(1) the names of other law enforcement agencies with access to

Hemisphere; and (2) documents that reveal how the DEA secures

cooperation of entities instrumental to Hemisphere’s operation

(Category 7E11). See Def.’s Not. of Partial Withdrawal of Mot.

for Summ. J., ECF No. 41 at 4.

     FOIA Exemption 7(E) permits the withholding of information

collected for law enforcement purposes if release of that

information would:

          disclose techniques and procedures for law


                                 13
          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). The purpose of Exemption 7(E) is to

prevent publication of information that would “train potential

violators to evade the law or instruct them [on] how to break

the law,” and to protect information that, if disclosed, “could

increase the risks that a law will be violated or that past

violators will escape legal consequences.” Mayer Brown LLP v.

I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009). Exemption 7(E) sets

a “relatively low bar” for an agency to justify withholding

information” but the government must “demonstrate logically how

the release of the requested information might create a risk of

circumvention of the law.” Blackwell v. F.B.I., 646 F.3d 37, 42

(D.C. Cir. 2011)(quoting Mayer Brown LLP, 562 F.3d at 1193).

          1. Category E-5: Names of Other Law Enforcement
             Agencies with Access to Hemisphere

     EPIC challenges the DEA’s withholding of the names of other

law enforcement agencies that have access to Hemisphere’s

database, arguing that the DEA does not explain “why the names

of federal agencies would reveal techniques, procedures, or

guidelines” or how such disclosure could “reasonably be expected

to risk circumvention of the law.” Pl.’s Cross-Mot. for Summ.

J., ECF No. 17-1 at 37. In its supplemental briefing, the DEA


                                14
explains that information “about specific law enforcement

agencies that have access to the Hemisphere program could help

criminals evade apprehension. . . . [and] would put violators on

notice that the Hemisphere program could be used against them .

. ..” Redacted Poole Decl., ECF No. 36–1 ¶ 43. The DEA also

argues that because the “types of crimes that fall within the

jurisdiction of one law enforcement agency can differ from the

types . . . that another agency law enforcement agency has

jurisdiction over” criminals could alter their behavior if

equipped of the knowledge of which agencies access Hemisphere.

Def.s’ Suppl. Br., ECF No. 36 at 11.

     Under Exemption 7(E), the government must demonstrate (1)

that the withheld information would disclose techniques,

procedures or guidelines for law enforcement investigations and

(2) that the disclosure would reasonably “risk circumvention of

the law.” 5 U.S.C. § 552(b)(7)(E); see also Blackwell, 646 F.3d

at 41–42.

     The Court first finds that, although a close question, the

DEA has sufficiently demonstrated that release of the names of

the agencies that have access to Hemisphere would reveal

techniques, procedures, or guidelines for law enforcement

prosecutions as to those agencies. See 5 U.S.C. § 552(b)(7)(E). 4


4 In its Memorandum Opinion dated June 24, 2016, the Court ruled
that defendant failed to adequately explain why release of the

                                15
Under the statute, information is only protected under Exemption

7(E) if it “would disclose techniques and procedures for law

enforcement investigations or prosecutions, or would disclose

guidelines for law enforcement investigations or prosecutions.”

See 5 U.S.C. § 552(b)(7)(E). In its supplemental memoranda, the

DEA has explained that the use of Hemisphere by the agencies

other than the DEA has not been publicly confirmed, and to

disclose such information would be disclosing the capabilities

and limitations of certain agencies, specifically the agencies

that do not use Hemisphere. Def.’s Resp. to Order of the Court,

ECF No. 44 at 1–3.   In other words, producing a set list of

which agencies use Hemisphere necessarily discloses that

Hemisphere is a technique or procedure that the agency utilizes,

which is information that is not publicly available.

     EPIC responds that names of the agencies are not techniques

or procedures and argues that providing the names would not

reveal techniques or procedures. Pl.’s Resp. to Order of the

Court, ECF No. 45 at 3–4. EPIC argues that the DEA only cites to

cases which hold that information that explains how an agency

uses a type of investigatory tool falls within Exemption 7(E),



information would circumvent law enforcement, and had no
occasion to discuss if the information was a technique or
procedure. EPIC, 192 F. Supp. 3d at 115–16. The Court ordered
supplemental briefing on this issue and the parties have filed
their responses to the Court’s Order. See Minute Order dated
June 17, 2019.

                                16
but do not stand for the proposition that identification of

which agency uses a tool would fall under that exemption. Id.

     EPIC is correct that there does not appear to be case law

that explicitly states that revealing which agency uses a

particular investigatory tool is tantamount to disclosure of a

technique, procedure, or guideline. However, the Court is

persuaded that disclosure of which agency has access to

Hemisphere necessarily discloses a technique or procedure used

by that agency. The Court understands that the names themselves

are not a technique, procedure or guideline, but with those

names comes the knowledge of how the agency employs its

procedures or techniques. In other words, to reveal the names of

the agencies would necessarily reveal information about the

techniques and procedures for those particular law enforcement

agency investigations. Therefore that information is protected

under Exemption 7(E) if its release would risk circumvention of

the law. See 5 U.S.C. § 552(b)(7)(E)

     As for the circumvention of law requirement, the Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has made clear that the requirement that a disclosure could

reasonably be expected to risk circumvention of the law, “sets a

relatively low bar for the agency to justify withholding[.]”

Blackwell, 646 F.3d at 42. “In fact, ‘the exemption looks not

just for [actual] circumvention of the law, but for a risk of


                               17
circumvention; not just for an actual or certain risk of

circumvention, but for an expected risk; not just for an

undeniably or universally expected risk, but for a reasonably

expected risk[.]’” Sheridan v. U.S. Office of Personnel Mgmt.,

278 F. Supp. 3d 11, 19 (D.D.C 2017)(quoting Mayer Brown LLP, 562

F.3d at 1193). Therefore, “[r]ather than requiring a highly

specific burden of showing how the law will be circumvented,

exemption 7(E) only requires that the [agency] demonstrate[]

logically how the release of [the requested] information might

create a risk of circumvention of the law.” Mayer Brown LLP, 562

F.3d at 1194 (internal quotation marks and citation omitted).

     In support of its arguments, the Poole declaration details

the type of information the DEA seeks to withhold, and the

reasons why release of that information “could reasonably be

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

552(b)(7)(E). For example, the declaration explains that

disclosing which agencies have access to Hemisphere would put

certain violators on notice that it could be used against them

and therefore risks that potential criminals will alter their

behavior. See Redacted Poole Decl., ECF No. 36–1 ¶ 43. The Court

finds that, after review of the unredacted declaration, the

declaration is sufficient to demonstrate how the release of the

requested information can create a risk of circumvention of the

law. Accordingly, the DEA’s motion for summary judgment


                               18
pertaining to withholding of the names of other agencies that

have access to the Hemisphere data is GRANTED.

          2. Category 7E-11: How the DEA Secures Cooperation
             from Third-Parties Instrumental to Hemisphere

     In its motion for summary judgment, the DEA argues that the

documents that reveal how the DEA secures cooperation from third

parties are protected under FOIA Exemption 7(E) because such

disclosure risks disruption of the means through which it

secures cooperation. Def.’s Reply, ECF No. 19 at 19. In its

prior Memorandum Opinion the Court noted that “[i]t is possible

that a document describing the means of securing cooperation

includes specific information . . . protected by Exemption 7(E),

yet it is also conceivable that the information is so

generalized that the document cannot be said to have been

created for law enforcement purposes, or that disclosure would

not risk circumvention of the law.” EPIC, 192 F. Supp. 3d at

114. Accordingly, the Court ordered the DEA to produce the

documents withheld under this rationale for in camera review.

Id. citing Fitzgibbon v. U.S. Secret Service, 747 F. Supp. 51,

60 (D.D.C. 1990)(noting that the F.B.I.’s conclusory statement

that certain techniques were not known to the public were

“general and cursory at best” and that the “only way the Court

can ascertain whether the assertions are correct is by way of an

in camera review.”)).



                               19
     Through Mr. Poole’s declaration, the DEA has provided a

more specific explanation for why disclosure of the documents

would hamper law enforcement efforts. Redacted Poole Decl., ECF

No. 36-1 ¶ 44. Mr. Poole explains that it could “reasonably be

expected that . . . the entities instrumental in the operation

of Hemisphere would likely choose to discontinue their

cooperation . . . [and] [t]his would risk making an important

investigative tool unavailable.” Id. The Court has reviewed the

declaration and conducted in camera review of the documents at

issue. After review of the declaration and the documents, the

Court is satisfied that the DEA has supported its assertion that

publication of these documents could “reasonably be expected to

lead to disruption of the means of securing cooperation” and

therefore could reasonably be expected to risk circumvention of

the law. Def.’s Mem. Suppl. Summ. J., Myrick Decl., ECF No. 15-3

¶ 45(k). Furthermore, it is apparent from these documents that

releasing any additional information would in fact disclose law

enforcement techniques and procedures. Accordingly, the DEA’s

motion for summary judgment pertaining to the means through

which Hemisphere secures the cooperation of entities

instrumental to Hemisphere's operations is GRANTED.

     C. Segregability

     FOIA requires that “any reasonably segregable portion of a

record shall be provided to any person requesting such record


                               20
after deletion of the portions which are” otherwise exempt under

the Act. 5 U.S.C. § 552(b). This rule of segregation applies to

all FOIA exemptions. Ctr. for Auto Safety v. EPA, 731 F.2d 16,

21 (D.C. Cir. 1984). “It has long been a rule in this Circuit

that non-exempt portions of a document must be disclosed unless

they are inextricably intertwined with exempt portions.” Mead

Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260

(D.C. Cir. 1977). Before approving the application of a FOIA

exemption, a district court must make specific findings of

segregability regarding the documents to be withheld. Summers v.

DOJ, 140 F.3d 1077, 1081 (D.C. Cir. 1998). Agencies are entitled

to a presumption that they complied with the obligation to

disclose reasonably segregable material. Boyd v. Criminal Div.

of U.S. Dept. of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007).

     The DEA has not addressed segregability in its supplemental

filings; however, the Court has an independent obligation to

determine whether the government has met its obligation under

the statute. See Sussman v. U.S. Marshals Service, 494 F.3d

1106, 1116 (D.C. Cir. 2007)(“If the district court approves

withholding without such a finding [of segregability], remand is

required even if the requester did not raise the issue of

segregability before the court.”). Upon review of the Myrick

Declaration, Def.’s Mem. Supp. Summ. J., Myrick Decl., ECF No.

15-3 ¶ 10, explaining its process for segregability; the Court’s


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in camera review of the contested documents; the released pages

attached to the motion for summary judgment; and the revised

released pages following the DEA’s notice of partial withdrawal,

the Court is satisfied that the government only withheld

information that is exempt from disclosure and material

“inextricably intertwined with exempt portions.” See Mead Data

Cent., Inc., 566 F.2d at 260. Accordingly, the Court finds that

the DEA has discharged its obligation to ensure it has not

withheld any segregable non-exempt materials.

IV. Conclusion

     For the foregoing reasons, defendant’s motion for summary

judgment is GRANTED and plaintiff’s cross-motion for summary

judgment is DENIED. An appropriate Order accompanies this

Memorandum Opinion.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          August 6, 2019




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