Electronic Privacy Information Center (EPIC), an independent non-profit research center and high-profile privacy and freedom of information advocacy group, announced yesterday that it filed a petition with the U.S. Supreme Court asking the Court to review the U.S. Court of Appeals for the D.C. Circuit’s February 2015 judgment permitting the Department of Homeland Security to withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies.
In a written statement about the litigation, EPIC President and Executive Director Marc Rotenberg commented, ”[t]he secret DHS policy to shut down cell phone service threatens public safety, open government, and First Amendment freedoms. EPIC has been seeking its public release for over four years. Now we are petitioning the U.S. Supreme Court after an earlier victory was overturned.” The protocol, entitled Standard Operating Procedure 303 (SOP 303) has been the subject of Freedom of Information Act (FOIA) litigation since February 2013, when EPIC filed suit after the denial by DHS of EPIC’s July 10, 2012 FOIA request for release of SOP 303 and related documentation.
In its Supreme Court petition, EPIC argues that, “[a]bsent Supreme Court review, the decision of the court of appeals could transform the FOIA from a disclosure to a withholding statute.”
At stake in this case is the release of a meaningfully complete copy of SOP 303—a document that is vitally important to the public’s right to the underlying policy that regulates the deprival of vital communications services. This case also importantly requests the Supreme Court to affirm a disputed, important point of law that EPIC argues was incorrectly applied by the court of appeals: whether Freedom of Information Act exemptions be “given a narrow compass” in light of the FOIA’s “goal of broad disclosure.” Specifically at issue is the scope of application of FOIA Exemption 7(F), which permits withholding of law enforcement information that, if released, “could reasonably be expected to endanger the life or physical safety of any individual.”
In its petition, EPIC challenges the appeals court’s broad interpretation of Exemption 7(F). In EPIC’s view, that broad interpretation is in contravention to earlier Supreme Court precedent that FOIA exemptions be “given a narrow compass” in light of “the Act’s goal of broad disclosure.” EPIC argues that the appeals court decision “is contrary to the intent of Congress, this Court’s precedent, and this Court’s specific guidance on statutory interpretation.”
One of the countervailing considerations that DHS previously-asserted in this case was that it is entitled to invoke Exemption 7(F) to protect “any individual’ reasonably at risk of harm”. It also previously argued that it is entitled to substantially withhold SOP 303 because its release poses a concrete and non-speculative danger to numerous albeit unspecified individuals, and because there is a direct nexus between disclosure and a reasonable possibility of personal harm.
EPIC’s original FOIA request to DHS that is the subject of EPIC’s Supreme Court petition arose out of the 2011 Bay Area Rapid Transit (BART) disruption of all cellular service inside four San Francisco transit stations for three hours in order to suppress a mass public protest against a BART officer’s lethal shooting of a homeless man, Charles Hill. The service disruption prevented everyone inside the transit stations from sending or receiving phone calls, messages, emergency notifications and other transmissions, thus thwarting the second protest. The suppressed protest followed a protest earlier that year, during which no injuries or deaths were reported.
After the 2011 events, EPIC submitted the subject FOIA request to DHS seeking the full text of SOP 303 and any related protocols or guidelines. DHS first responded that it did not have the requested documents, after which EPIC filed suit in district court. In response to the filing but before the district court’s ruling, DHS provided EPIC a copy of SOP 303 that was heavily-redacted under Exemption 7(F) and other Exemptions, withholding nearly all of SOP 303’s text. The district court rendered an initial favorable decision entitling EPIC to a copy of SOP 303 that was not redacted under Exemption 7(F), as was the provided copy. It also, however, permitted DHS 30 days to respond or file an appeal; DHS appealed and reversal and remand followed.
In its February 2015 decision, the Court of Appeals reversed the district court, holding that “the [DHS] permissibly withheld much, if not all of SOP 303, because its release. . .could reasonably be expected to endanger individuals’ lives or physical safety . . . .” The Court of Appeals reasoned that “because the record in this case was related to a “critical emergency” response plan, the general risk that the “protocols” could be “corrupted if made available to the public” was sufficient to satisfy the Exemption 7(F) requirements.”
The appeals court also remanded the case “for the district court to determine whether any reasonably segregable portions of SOP 303 can be disclosed.” This ultimately resulted in the release of an updated, only somewhat less heavily redacted SOP 303.
Whether the public should have access to SOP 303, a now substantially secret policy that provides detailed procedures for the coordination of requests for the disruption of cellular service, as well as the scope of latitude courts will give FOIA exemptions, are crucial public policy issues that EPIC is asking the Supreme Court to decide.
This post has been updated since it was originally posted earlier this morning, adding the written comment of EPIC President and Executive Director Marc Rotenberg on the litigation, received after posting.
This article was written by Lisa Brownlee from Forbes and was legally licensed through the NewsCred publisher network.