Elec. Frontier Found. v. DHS, No. 12-5580, 2014 WL 1320234 (N.D. Cal. Mar. 31, 2014) (Hamilton, J.)

Elec. Frontier Found. v. DHS, No. 12-5580, 2014 WL 1320234 (N.D. Cal. Mar. 31, 2014) (Hamilton, J.)

Re: Request for records concerning U.S. Customs & Border Protection's use of unmanned aircraft systems

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Exemption 7(E):  First, the court analyzes defendant's withholding of OAM daily reports and holds that "defendant has adequately shown that location-based information from the OAM Daily Reports was properly withheld under FOIA exemption 7(E)."  The court finds that the "location of CBP's drone operations do qualify as 'techniques and procedures,' and thus are entitled to the exemption's protections without any further showing."  However, the court finds that "even if the court were to require defendant to show risk of circumvention of the law, the court finds that defendant has done so" by stating that "'[r]eleasing the geographic location of the operation would show where OAM has clearance to fly and one could deduce which areas OAM does not have clearance to fly or does not operate,' which would risk circumvention of the law in those areas."  Moreover, the court holds that "the specific locations of CBP drone operations are not generally known" to the public.  The court then, "[t]urn[s] to operational information," and similarly finds for defendant.  The court holds that "absent any evidence from EFF contradicting the supplemental [defendant] declaration, the court is inclined to find that defendant has indeed satisfied its burden to establish that the requested operational information is not generally known."  The court explains that "[j]ust because some piecemeal facts regarding drones' operation may be known, that does not mean that defendant is obligated to disclose all information about drone operations." 

Second, the court "address[es] CBP's withholdings from the CONOPS report" and finds "that release of location-based information would disclose law enforcement techniques and procedures, and even if defendant were required to show risk of circumvention of the law, defendant would meet that burden as well."  The court explains its second point by stating that "[e]ven if other measures (aside from drones) are used, disclosure of the location of drone operations may still increase the risk of circumvention of the law."  The court then analyzes the "withholding[] of operational information" and makes a similar finding, holding that "release of the operational information—which includes CBP's methods for identifying and analyzing threats, as well as drone capabilities and vulnerabilities—would indeed disclose techniques and procedures for law enforcement, thus entitling the information to protection under exemption 7(E)[,] [a]nd even if the court were to require defendant to show that release of the information would risk circumvention of the law, defendant would also meet its burden under that test."  The court additionally "finds that defendant has met its burden to show that the location-based information withheld from the CONOPS report is not generally known."

• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that certain information "can be segregated from exempt information, and should not have been redacted under exemption 7(E)."  The court therefore denies in part defendant's motion for summary judgment and grants in part plaintiff's motion for summary judgment.