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The District Court for the District of Columbia finds that certain records regarding the Federal Bureau of Investigation’s use of drones were properly exempt from a request of action under the Freedom of Information Act (CREW v. DOJ) Download PDF

  • Government
  • Judicial
  • Robotics/AI

Upholds the Federal Bureau of Investigation’s decision to withhold records of drone usage, including domestic, when disclosing such records could impact national security, harm the competitiveness of contracted drone companies, or reveal law enforcement techniques.

Updated last February 23, 2018
for the 02/09/2016 decision.
What it does 

In Citizens for Responsibility and Ethics in Washington v. United States Dept. of Justice, 160 F.Supp.3d 226 (D.D.C. 2016), the District Court for the District of Columbia found that the Federal Bureau of Investigation (FBI) properly withheld certain records on its use of drones and unmanned aerial vehicles (UAVs) from a Freedom of Information Act (FOIA) request that implicated national security, confidential trade secrets and law enforcement techniques.

The court found the FBI was authorized to withhold records of drone usage in the interest of national security. Specifically, the court agreed there was a risk certain records could alert foreign targets that they were under investigation as well as identify the sources and limitations of the drones being used. By preventing the disclosure of these documents, watchdog organizations like Citizens for Responsibility and Ethics in Washington (CREW), the Plaintiff in this case, could find it more difficult to learn about domestic drone usage. However, preventing the disclosure of this information also ensures it remains out of the hands of individuals who might use it to harm the United States’s interests. 

In addition, the court approved the FBI’s withholding of records regarding drone vendors and operating manuals because of a concern for potential harm the companies could face competitively if these records were disclosed. This ruling protects the interests of companies who voluntarily, or as part of a mandatory disclosure, give detailed information to the FBI. 

Finally, the court agreed with the FBI in its withholding under the FOIA law enforcement exemption of certain drone capabilities, vendor identities, and funding. The court reasoned that withholding this information protects against individuals using it to more easily circumvent law enforcement.

The facts 

On June 26, 2013, Citizens for Responsibility and Ethics in Washington filed an Expedited Freedom of Information Act request with the FBI. CREW sought records showing the sources of all FBI drones used from January 1, 2009 until 2013, the funding sources for those drones, who provided training to use those drones, and any policy concerns the FBI discussed regarding the use of drones. CREW reasoned that this information should be released to the public to ensure that the FBI was acting legally in how it used drones, especially on a domestic scale. In responding to the FOIA request, the FBI withheld certain records based on several recognized FOIA exemptions.

Procedural History 

One month after sending the FBI the FOIA request, CREW filed a complaint in the DC District Court to enforce the FOIA request. On June 16, 2014, a Joint Status Report was filed, in which the FBI stated the FOIA request had been fully processed. On October 15, 2014, the Department of Justice (DOJ) filed a Motion for Summary Judgment with the court, which allows a party to receive an earlier judgment if there are no factual disputes requiring further litigation. CREW filed its Opposition and Cross-Motion for Summary Judgment on January 5, 2015, challenging the application of FOIA Exemptions 1, 3, 4, 5, and 7(E).

On February 9, 2016, the District Court issued its opinion granting the DOJ’s Motion for Summary Judgment.

Decision Points 

FOIA Exemption 1: National Security

Under 5 U.S.C. 552(b)(1), national defense or foreign policy information that have been properly classified by an Executive Order to be kept secret are precluded from disclosure in an FOIA request. The FBI applied this exemption to documents that contained information regarding actual intelligence activities and the methods used by the FBI in foreign counter intelligence operations. Despite CREW’s argument that they were seeking information on domestic drone use, the court held that the record disclosure could reveal foreign targets and the drones’ limitations. Thus, it was properly withheld under this exemption.

FOIA Exemption 4: Trade Secrets

Under 5 U.S.C. 552(b)(4), an agency may refuse to disclose records that contain trade secrets and commercial or financial information that are privileged or confidential. The DOJ withheld solicitation-related material, operator manuals and a vendor training schedule. CREW contended that the information withheld was not confidential and thus not exempt under the trade secrets exception.

According to the court, the test for confidentiality depends on whether the information was submitted to the government voluntarily or involuntarily. Involuntarily submitted information is considered confidential only if releasing the information would impair the Government’s ability to obtain necessary information in the future or cause substantial harm to the submitter’s competitive interests.

Here, the court held that the release of the withheld information could have an adverse effect on the competitiveness of vendors required to turn that information over to the government. Public release of this information would allow competitors to underprice for government contracts or improve technology based on the released records. This met the requirements for the rule and the court ruled for the DOJ.

FOIA Exemption 7(E): Law enforcement

Under 5 U.S.C. 552(b)(7), agencies may withhold information that has been compiled for law enforcement purposes if disclosing that information would reveal the techniques and procedures for law enforcement and could risk circumvention of the law. CREW challenged the FBI’s use of this exemption to withhold information regarding UAV operational capabilities and equipment specifications, the identities of UAV vendors and suppliers, and UAV training, pilot qualifications, and funding details. The court found that the information was properly withheld because the release of such information could reveal key details of law enforcement techniques and risk the possibility of individuals circumventing the law.

Relevant Science 

Drones, or unmanned aerial vehicles (UAVs), are aircraft operated and controlled by pilots on the ground. The US military began using drones under President Bush’s tenure, and President Obama further expanded the military use in foreign operations. Drones are commercially available and have been increasingly employed by law enforcement for surveillance purposes.

Law enforcement surveillance drones, including those used by the FBI, tend to be smaller in size than military drones, making them harder to detect from the ground. They usually have high definition cameras that can take photographs and real-time video streams. They can also come equipped with infrared cameras for thermal imaging, GPS, and sensors to detect small movements. The specific capabilities for FBI drones are largely unknown given their confidential nature, but the FBI has explained that they are not used for mass surveillance operations.

In 2015, the Department of Justice issued guidelines explaining that drone usage must follow the same constitutional protections as other investigative techniques including seeking a warrant, avoiding unreasonable searches, and respecting individuals’ First Amendment rights.

Counsel 

For the Plaintiff, Adam J. Rappaport, Citizens for Responsibility and Ethics in Washington, and Anne L. Weismann, Campaign for Accountability, Washington, DC.

For the Defendant, Jennie Leah Kneedler, U.S. Department of Justice, Washington, DC.

Status 

After granting the DOJ’s Motion for Summary Judgment, there were no motions for appeal filed by either party. Thus, CREW’s complaint is resolved in favor of the DOJ and FBI.

Relevant Experts 

Mary “Missy” Cummings, Ph.D., Professor in Duke Pratt School of Engineering Department of Mechanical Engineering and Materials Science, the Duke Institute of Brain Sciences, and Director of the Human and Autonomy Laboratory and Duke Robotics. 

Maj. Gen. Charles J. Dunlap, Jr., USAF (Ret.), Professor of the Practice of Law at Duke University School of Law, Executive Director of the Center on Law, Ethics and National Security.

Background 

The Freedom of Information Act (FOIA) creates a right for the public to ask any federal agency to disclose records unless the records implicate express exemptions. FOIA was passed in 1966 as an effort by Congress to ensure accountability in the Johnson administration.

In seeking a FOIA request, the requester can file a complaint with the district court to get the request enforced. The court has the power to review withheld information de novo, which means the court does not have to defer to the federal agency’s decision to withhold the records. If either party believes there is no genuine dispute of material fact, the party can file a Motion for Summary Judgment with the court. When the court agrees that there are no issues that need to be litigated further, the court can grant the motion and end the litigation.

Primary Author 
Meredith Compton, JD Candidate
Editor(s) 
Bobbie Burrows, JD Candidate; Michael Clamann, PhD, CHFP
Recommended Citation 

Duke SciPol, "Citizens for Responsibility and Ethics in Washington v. United States Department of Justice," available at http://scipol.duke.edu/content/district-court-district-columbia-finds-certain-records-regarding-federal-bureau (02/26/2018).

License 
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