In 2012, Greenpeace, Inc., submitted a Freedom of Information Act request to the Department of Homeland Security seeking records concerning certain formerly high-risk chemical facilities that DHS no longer considered high-risk. Nearly a year later, DHS responded, withholding the requested records in full and claiming that the records were exempt from disclosure under FOIA because disclosure could endanger physical safety of one or more people. Greenpeace appealed to the administrative law judge delegated the head of the agency to resolve FOIA appeals. In June 2014, the ALJ issued a decision agreeing with Greenpeace that the agency had not supported its claim that the records were exempt and directing DHS to produce the records. In December 2014, DHS produced records, but they were almost entirely redacted. DHS claimed that the redactions were for exactly the same reason that the ALJ had rejected. Greenpeace appealed again to the ALJ, who stated that he had already ordered the documents released and could do nothing more.
Represented by Public Citizen, Greenpeace filed suit seeking disclosure of the complete records, as ordered by the agency’s appeal process. After DHS filed a motion to dismiss or for summary judgment, Greenpeace filed a cross-motion for summary judgment.
On May 1, 2018, the district court granted summary judgment against Greenpeace. The court held that, notwithstanding the agency’s final determination on appeal that the records were not exempt, the agency could refuse to produce them and defend against Greenpeace’s FOICE claim on the ground that they were exempt. The court held that this result followed from the proposition that exemption issues are determined de novo in FOIA litigation. The court then sustained the agency’s claim that disclosing the records would pose a security threat justifying the agency’s claim of exemption.