Case 1:11-cv-00939-RJL Document 1 Filed 05/19/11 Page 1 of 6
FilED

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAY l 9 2011
Clerk, U.s. 01stnct & Bankruptcy Courts tor the District of Columbia

ELECTRONIC FRONTIER FOUNDATION

)

1818 N Street, N.W.

)

Suite 410

)

Washington, DC 20036,

)

\

Plaintiff,

Case: 1: 11-cv-00939

v.

Ass!gned To: Leon, Richard J

Assign. Date : 5/19/2011

.

DEPARTMENT OF .JUSTICE

Description: FOJNPnvacy Act

950 Pennsylvania Avenue, N.W.

)

Washington DC 20530,

)

)

______________D_ef_en_d_a_nt_. _______________))

COMPLAINT FOR INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S .C. § 552. Plaintiff Electronic Frontier Foundation ("EFF") seeks injunctive and other

appropriate relief for the processing and release of agency records requested by plaintiff

from defendant Department of Justice ("DOJ"). Specifically, plaintiff seeks disclosure

I

I

of a memorandum prepared by DOJ's Office of Legal Counsel ("OLC") in January 2010

I.

concerning statutory provisions governing the conduct of electronic surveillance.

Jurisdiction and Venue

2. This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B). This Court also has

jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district

under 5 U.S.C. § 552(a)(4)(B).

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Parties 3. Plaintiff EFF is a not-for-profit corporation established under the laws of the Commonwealth of Massachusetts, with offices in San Francisco, California and Washington, DC. EFF is a donor-supported membership organization that works to inform policymakers and the general public about civil liberties issues related to technology, and to act as a defender of those liberties. In support of its mission, EFFuses the FOIA to obtain and disseminate information concerning the activities of federal agencies. 4. Defendant DOJ is a Department of the Executive Branch of the United States Government. DOJ is an "agency" within the meaning of 5 U.S.C. § 552(f). OLC is a component of defendant DOJ. Government Acquisition of Communications Data and the OLC Memorandum 5. In January 2010, DOJ' s Office of the Inspector General ("OIG") released a report entitled, "A Review of the Federal Bureau of Investigation's Use of Exigent Letters and Other Informal Requests for Telephone Records," its third report in response to the requirements of the USA PATRIOT Improvement and Reauthorization Act of
2005. The first two reports issued in response to that Act focused on the FBI's massive abuse and misuse of National Security Letters ("NSLs"), a secret administrative subpoena authority that was expanded under the USA PATRIOT Act of 2001 and is used to obtain,
inter alia, telephone records in national security investigations. The third OIG report focused on the FBI's widespread use of informal requests to communications service providers to obtain telephone records without any legal process at all, and in violation of 18 U.S .C. § 2702 of the Stored Communications Act, that portion of the Electronic
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Communications Privacy Act ("ECPA") regulating provider disclosures and government demands for communications records and content.
6. The final, publicly released OIG report revealed that after it reviewed a draft of the report before release, the FBI asserted for the first time a new legal theory defending the legality of its obtaining certain types of telephone records in national security investigations without the use of NSLs or any other legal process. The report further revealed that the FBI had requested the OLC's opinion on the issue, and that the resulting OLC opinion-issued on January 8, 2010-concurred with the FBI's argument that ECPA allowed the FBI to seek and obtain certain types of telephone records on a voluntary basis from providers without legal process or a qualifying emergency.
7. Due to redactions, the unclassified version of the OIG report did not specify the particular exception in the statute that the FBI and OLC were relying on for their novel legal conclusion, or what category of telephone records it purportedly applied to. However, the public version of the report did clearly express the OIG' s grave concerns about the FBI's and OLC's new reading of the law, noting the OIG's belief that the newly argued exception "creates a significant gap in FBI accountability and oversight that should be examined closely by the FBI, the Department, and Congress," and further
noting that although "ltlhe FBI has stated that it does not intend to reply on Iits newly argued exception I ... that could change, and we believe that appropriate controls on
such authority should be considered now, in light of the FBI's past practices ...." The OIG concluded with a recommendation that DOJ notify Congress of the issue and of the OLC opinion interpreting the scope of the FBI's authority, so that Congress could consider the matter.
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8. In response to a FOIA request by a journalist for the January 8, 2010, OLC memorandum discussed in the OIG report, the OLC revealed in a response letter dated February 8, 2011, that the memo specifically addressed the FBI's authority under 18 U.S.C. 2511(2)(f), thereby identifying the statutory provision relied upon by the FBI in arguing that it did not require legal process to obtain voluntary disclosure of certain telephone records.
Plaintiff's FOIA Request and DOJ's Withholding Decision 9. By letter sent by electronic mail to defendant DOJ's component OLC on February 15, 2011, plaintiff requested under the FOIA "a copy of an OLC memorandum dated January 8, 2010, analyzing the authority ofthe FBI under [18 U.S.C. § 2511]." 10. By letter to plaintiff dated February 25, 2011, OLC acknowledged its receipt of plaintiff's FOIA request and stated that it ''found one document that is responsive to [the] request" and that "[w]e are withholding the document pursuant to FOIA Exemptions One and Five, 5 U.S.C. § 552(b)(l) and (5)." OLC advised plaintiff of its right to file an administrative appeal of OLC's adverse determination. 11. By letter to defendant DOJ' s Office of Information Policy ("OIP'') dated March 9, 2011, plaintiff appealed OLC's determination to withhold the requested records. 12. By letter to plaintiff dated March 22, 2011, OIP acknowledged its receipt of plaintiff's administrative appeal on March 18, 2011. 13. To date, defendant DOJ has not issued a determination in response to plaintiff's administrative appeal under the FOIA. 14. Defendant DOJ has violated the applicable statutory time limit for rendering decisions on administrative appeals under the FOIA.
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15. Plaintiff has exhausted the applicable administrative remedies. 16. Defendant DOJ has wrongfully withheld the requested records from plaintiff.
CAUSE OF ACTION Violation of the Freedom of Information Act for
Wrongful Withholding of Agency Records 17. Plaintiff repeats and realleges paragraphs 1-16. 18. Defendant DOJ has wrongfully withheld agency records requested by plaintiff by determining to withhold the requested material, and failing to comply with the statutory time limit for rendering decisions on administrative appeals under the FOIA. 19. Plaintiff has exhausted the applicable administrative remedies with respect to defendant DOl's wrongful withholding of the requested records. 20. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested records.
Requested Relief WHEREFORE, plaintiff prays that this Court:
A. order defendant DOJ to disclose the requested records in their entirety and make copies available to plaintiff; B. provide for expeditious proceedings in this action; C. award plaintiff its costs and reasonable attorneys fees incurred in this action; and D. grant such other relief as the Court may deem just and proper.
5

Case 1:11-cv-00939-RJL Document 1 Filed 05/19/11 Page 6 of 6 Respectfully submitted,
~#d D.C. Bar No. 360418 Electronic Frontier Foundation 1818 N Street, N.W. Suite 410 Washington, DC 20036 (202) 797-9009 Counsel for Plaintiff
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 Case 1:11-cv-00939-RJL Document 22 Filed 09/21/12 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER FOUNDATION,
Plaintiff,
v.
DEPARTMENT OF JUSTICE. Defendant.

) ) ) ) ) ) Civil Case No. 11-939 (RJL) ) ) ) ) ) )

s+-
MEMoRANDuM OPINION (September~, 2012) [#11, #14]

Plaintiff Electronic Frontier Foundation ("EFF" or "plaintiff') brings this action

against the U.S. Department of Justice ("the Department", "DOJ" or "defendant") for

failure to disclose information pursuant to the Freedom of Information Act ("FOIA").

Plaintiff seeks material from DOJ's Office of Legal Counsel ("OLC") that interprets the

scope of certain areas of the Federal Bureau oflnvestigation's ("FBI") authority under

federal surveillance law. Before the Court are the parties' cross-motions for summary

judgment. Upon consideration of the parties' pleadings, relevant law, and the entire

record herein, the defendant's motion is GRANTED and the plaintiffs cross-motion is

DENIED.

BACKGROUND

Plaintiff is a non-profit organization concerned with technology-related civil

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liberty issues. Compl. ~ 3, ECF No. 1. In February 2011, plaintiff submitted a FOIA request for a January 8, 2010 memorandum prepared by OLC (hereinafter, "OLC Opinion") for the FBI. !d. ~ 9. The requested OLC Opinion was generated in the context of an internal executive branch examination of some of the FBI's information-gathering techniques. !d. ~~5-6. More specifically, pursuant to the reauthorization of the USA PATRIOT Act, DOJ's Office ofthe Inspector General ("OIG") examined the FBI's practice of requesting and receiving telephone records from major companies by using secret administrative subpoenas known as National Security Letters ("NSLs"). !d. The OIG found that the FBI was sometimes requesting immediate disclosure of telephone records using exigent letters, rather than or prior to providing NSL subpoenas, and subsequently initiated a study of the FBI's use ofthese exigent letters to obtain telecommunications records. !d. ~ 5.
While the OIG study was still in progress, the FBI sought OLC's legal advice on whether, in national security investigations, the FBI's obtainment of certain types of telephone records without the use ofNSLs or any other process complied with the law. !d.~ 6. On January 8, 2010, OLC provided the FBI with a memorandum of its legal analysis and advice. !d. Pursuant to the FOIA, plaintiff requested a copy of the OLC Opinion on February 15, 2011. !d.~ 9. Ten days later, on February 25, 2011, OLC denied plaintiffs FOIA request, explaining that the OLC Opinion was being withheld under FOIA Exemptions 1 and 5. !d.~ 10. Plaintiff formally appealed OLC's decision to DOJ's Office of Information Policy ("OIP") on March 18, 2011, but received no response. I d. ~~ 11-13.
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Two months later, on May 19, 2011, plaintiff filed a complaint in this Court, seeking an order to compel disclosure of the OLC Opinion. See generally id. On November 10, 2011, the Department moved for summary judgment, contending that the OLC Opinion was justifiably withheld under FOIA Exemptions 1 and 5. Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 1, ECF No. 11. The Department supported its motion with two affidavits, one from the FBI Section Chief responsible for FOIA requests and the other from OLC Special Counsel. See Corrected Decl. of David M. Hardy ("Hardy Decl."), ECF No. 12-1; Decl. of Paul P. Colborn ("Colborn Decl."), ECF No. 11-4. On December 13, 20 11, plaintiff also moved for summary judgment, asserting that the DOJ is not entitled to summary judgment because it failed to carry its burden to withhold the OLC Opinion under Exemptions 1 and 5. Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. and in Supp. ofPl.'s Cross-Mot. for Summ. J. ("Pl.'s Mem.") at 11-12, ECF No. 14. For the reasons set forth below, I disagree and GRANT summary judgment in favor of the defendant.
ANALYSIS Both parties have moved for summary judgment in this case. FOIA cases are "typically and appropriately" decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). "When assessing a motion for summary judgment under FOIA, the Court shall determine the matter de novo." Judicial Watch, Inc. v. U.S. Dep'tofHomeland Sec., 598 F. Supp. 2d 93,95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summary judgment is appropriate when the record demonstrates that there is no
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genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a). With respect to an agency's non-disclosure decisions in a FOIA action, the court may rely on affidavits or declarations if they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (affidavits and declarations are "accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents") (internal citation and quotation marks omitted).
"Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible."' Larson v. Dep 't ofState, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolfv. CIA, 473 F.3d 370,374-75 (D.C. Cir. 2007)). In assessing the logic and plausibility of an agency assertion of an exemption, "reviewing courts [should] respect the expertise of an agency" and avoid "overstep[ping] the proper limits of the judicial role in FOIA review." Hayden v. NSA, 608 F.2d 1381, 1388 (D.C. Cir. 1979); see also Military Audit Project, 656 F.2d at 753; Halperin v. CIA, 629 F.2d 144, 148 & n.20 (D.C. Cir. 1980). For the following reasons, the Court finds there are no genuine issues of material fact as to the validity of each exemption invoked in this case.
I. Exemption 1 Information can be withheld under Exemption 1 if it is "specifically authorized 4

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under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and [is] in fact properly classified pursuant to such
Executive order." 5 U.S.C. § 552(b)(l). The Department asserts that the withheld
information contained within the OLC Opinion was properly classified pursuant to
Executive Order ("E.O.") 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), which exempts from
disclosure information pertaining to "intelligence activities" and "intelligence sources or
methods" that, if disclosed, could be expected to cause damage to the national security.
E.O. 13526, §§ 1.2, 1.4(c).
To show that it has properly withheld information under E.O. 13526, and that the
classification is proper, DOJ must demonstrate that the withheld information falls within
the substantive scope ofE.O. 13526, and that the information was classified using the
proper procedures. 1 Under section 1.1(a) ofE.O. 13526, information can be properly
classified if it (1) is classified by an original classification authority; (2) is owned,
produced, or controlled by the U.S. government; (3) pertains to "intelligence activities
1 See King v. DOJ, 830 F.2d 210, 214 (D.C. Cir. 1987); Halperin v. Dep 't ofState, 565 F.2d 699, 703 (D.C. Cir. 1977); Hardy Decl. ~ 7. These proper procedures include: (1) the document was marked as required and stamped with the proper classification designation, E.O. 13526, §§ 1.6(a)(1)-(5); (2) the document was marked to indicate clearly which portions are classified, which portions are exempt from declassification as set forth in E.O. 13526, § 1.6(c), and which portions are unclassified, E.O. 13526, § 1.6(c); (3) the prohibition and limitations on classification specified in E.O. 13526, § 1.7(a) were adhered to; (4) the declassification policies set forth in E.O. 13526, §§ 3.1 ("Authority for Declassification") and 3.3 ("Automatic Declassification") were followed; and (5) any reasonably segregable portions of this classified document which did not meet the standards for classification under E.O. 13526 were declassified and marked for release, unless withholding was otherwise warranted under applicable law, 5 U.S.C. § 552(b). See Hardy Decl. ~ 10. The Hardy declaration explains that all of the procedural requirements ofE.O. 13526 were followed in this case. !d.
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(including covert action), intelligence sources or methods, or cryptology", among other protected categories, and (4) ''the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in [a specified level of] damage to the national security, ... and the original classification authority is able to identify or describe the damage." E.O. 13526, §§ 1.1(a), 1.4(c); see also Hardy Decl. ~ 8.
Here, DOJ withheld from the plaintiff specific portions of the OLC Opinion that contained highly specific, classified information relating to FBI intelligence sources or methods. See Hardy Decl. ~~ 12, 16, 17. The eleven-page OLC Opinion was written in response to a specific request from the FBI for legal analysis and advice regarding the OIG's then ongoing evaluation of the FBI's information-gathering techniques in national security investigations. !d. ~ 11. To support its actions in this case, the Department submitted two declarations, one from David M. Hardy, Section Chief of FBI's Records Management Division, and another from Paul P. Colborn, OLC Special Counsel. See generally id.; Colborn DecI. Based on these detailed declarations, I find that the specified portions of the OLC Opinion were appropriately withheld by DOJ under Exemption 1.
First, the Department's declarations demonstrate that the classification markings in the OLC Opinion, which were ultimately withheld, were properly made pursuant to the mandated procedures ofE.O. 13526. More specifically, the Hardy and Colborn declarations explain that the FBI, in making its request for legal advice to OLC, sent two letters to the agency that included classified factual information regarding "certain
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sensitive techniques used in the context of national security and law enforcement investigations." 2 Colborn DecI. ~~ 9-11; Hardy DecI. ~ 4. Utilizing such classified
factual information to render its guidance, OLC followed its standard practice and
marked as classified "[t]hose portions of the [OLC] Opinion which reflect classified
factual information provided to OLC by the FBI." Colborn Decl. ~ 11. Accordingly, in
determining whether each classification marking contained in the OLC Opinion is proper,
Hardy, who holds original classification authority pursuant to E.O. 13526,3 also carefully
reviewed each of the classification markings contained in the two FBI letters. Hardy
Decl. ~~ 4, 18, 21. The Hardy declaration makes clear that, in accordance with E.O.
13526, all withheld information in the OLC Opinion was appropriately classified at the
"SECRET/NOFORN" ("S/NF") level by the FBI, was under the control of the U.S.
government, and continues to warrant classification at the "S/NF" level in the interest of national security.4 /d.~~ 5, 9, 12, 19, 21.
In addition, through the assertions in its declarations, the DOJ demonstrates that
2 The first letter, a November 27, 2009 opinion request, was from FBI's General Counsel, Valerie Caproni, to OLC's Acting Assistant Attorney General, David Barron. Hardy Decl. ~ 4. Supplementing the previous letter with additional facts and an expanded request for legal advice, the second letter, dated December 11, 2009, was again from Caproni to Barron. !d. The DOJ declarations confirm that a number of the individual paragraphs in these two letters were marked as classified by the FBI at the "SECRET/NOFORN" ("S/NF") level, which restricts access to persons who need to know with an appropriate security clearance. See id.; Colborn Decl. ~ 10. 3 More specifically, Hardy has been designated by the Attorney General of the United States as an original classification authority pursuant to E.O. 13526, §§ 1.3 and 3.1. Hardy Decl. ~ 2. 4 The only reclassification ordered by Hardy after his "careful classification review" of the OLC Opinion was the re-designation from "UNCLASSIFIED" ("U") to "S/NF" of one footnote. Hardy Decl. ~ 21.
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the withheld portions of the OLC Opinion were properly classified under section 1.4(c) as intelligence activities, sources or methods and that disclosure of such information could reasonably be expected to cause damage to national security. More specifically, Hardy avers in his declaration that the classified information contained in the OLC Opinion concerns: (1) "actual intelligence activities, sources or methods used by the FBI against targets of foreign counterintelligence and counterterrorism investigations or operations"; and (2) "intelligence-gathering capabilities used by the FBI to gather specific information on targets of national security investigations." Hardy Decl. ~~ 14-15. Explaining that such information is "highly specific," "known to very few individuals," and "still used by the FBI today to gather intelligence information," id. ~ 16, Hardy asserts that the disclosure of such information could reasonably be expected to cause "serious damage to national security" by, among other things, "allow[ing] hostile entities to discover the current methods and activities used" and "appraise the scope, focus, location, and capabilities ofthe FBI's intelligence-gathering methods and activities." !d.~~ 12, 16-17. In addition to causing a major disruption to FBI's intelligence-gathering capabilities, this would also "severely damage the FBI's efforts to detect and apprehend violators ofthe United States' national security and criminal laws." !d. ~ 16. Moreover, Hardy explains that disclosure also could "allow hostile agents to devise countermeasures to circumvent these intelligence activities or methods," such as the "alteration of behavior to evade detection" or the "utiliz[ation] [of] these same methods and activities to engage in disinformation," thus rendering the FBI's methods and activities "useless in providing intelligence information." !d. ~~ 16-17.
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"[C]ourts must 'recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure of a particular classified record."' Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982) (quoting S. Rep. No. 93-1200, at 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290). Thus, while this Court's review is de novo, our Circuit has consistently emphasized its deferential posture to the executive in FOIA cases involving national security concerns, as judges "lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case." Halperin, 629 F.2d at 148; see also Larson, 565 FJd at 865; Ctr.for Nat'[ Sec. Studies v. DOJ, 331 F.3d 918, 928 (D.C. Cir. 2003). Accordingly, this Court should not "conduct a more detailed inquiry to test the [DOJ' s] judgment and expertise or to evaluate whether the court agrees with the [DOJ's] opinions" if the agency's statements in support of exemption "contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise." Larson, 565 F.3d at 865; see also Hodge v. FBI, 764 F. Supp. 2d 134, 138 (D.D.C. 2011). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Larson, 565 FJd at 862 (internal citations and quotation marks omitted); Wolfv. CIA, 357 F. Supp. 2d 112, 116 (D.D.C. 2004), rev 'don other grounds, 473 FJd 370 (D.C. Cir. 2007) ("In reviewing a classification decision ... this Circuit has required little more than a showing that the agency's rationale is logical.").
Conferring substantial weight and deference to the DOJ' s declarations, I find that 9

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the Department has explained with sufficient detail why the withheld information in the OLC Opinion qualifies as "intelligence sources or methods" and adequately described the potential harm to national security that could result from the information's public disclosure. The Department has thus met its burden for invoking FOIA Exemption I by demonstrating that the information requested by plaintiff in the OLC Opinion is properly classified according to the criteria established by E.O. 13526.
Plaintiffs arguments to the contrary are unpersuasive. First, plaintiff argues that the DOJ failed to provide a detailed justification of its withholdings, tied to the particular part of the OLC Opinion to which it applied, and thus failed to sustain its burden regarding FOIA Exemption 1 on summary judgment.5 See Pl.'s Mem. at I4-I5. The law of our Circuit has made clear, however, that an agency satisfies its burden provided that the agency's submissions6 set forth a "relatively detailed justification for invoking an exemption to disclosure; specifically identify the reasons why a particular exemption is relevant; and correlate those claims with those records (or portions thereof) to which they apply." Schoenman v. FBI, 763 F. Supp. 2d 173, I88 (D.D.C. 2011) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d I4I, I45 (D.C. Cir. 2006)) (internal quotation marks omitted).
5 More specifically, plaintiff takes issue with DOJ's application of Exemption I, in the
Iaggregate, to pages I to 2 and 4 to II of the OLC Opinion, without specifying "that
certain] words, lines, or paragraphs in the document are classified." Pl.'s Mem. at I4. Although a Vaughn index is generally required in FOIA cases, our Circuit has made clear that supporting affidavits may be submitted in lieu of a Vaughn index, as "it is the function, not the form, of the index that is important." Judicial Watch, Inc. v. FDA, 449 F.3d I4I, I46 (D.C. Cir. 2006); Keys v. US. Dep't ofJustice, 830 F.2d 337,349 (D.C. Cir. I987).
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Here, the Department has made clear, via its declarations, that it is asserting Exemption 1 only as to certain paragraphs of the OLC Opinion which have been marked as classified in accordance with the classification markings included in the FBI's two letters to OLC requesting legal advice. See Hardy Decl. ~~ 4-5, 12, 20-21; Colborn Decl. ~~ 10-11. Having conveyed enough information for the plaintiff and the Court "to identify the records referenced and understand the basic reasoning behind the claimed exemptions," Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007), the Department's submitted declarations are sufficiently specific to satisfy its burden without going so far as to disclose protected information. See Judicial Watch, 449 F.3d at 147 ("We have never required repetitive, detailed explanations for each piece of withheld information."). As such, this Court declines plaintiffs invitation to review the records at issue in camera. See Pl.'s Reply Mem. in Supp. ofPl.'s Cross-Mot. for Summ. J. ("Pl.'s Reply") at 5, ECF No. 20; Hayden, 608 F.2d at 1387 (in FOIA cases, in camera review is a "last resort to be used only when the affidavits are insufficient for a responsible [d]e novo decision") (internal citation and quotation marks omitted).
Second, plaintiff alleges that DOJ has failed to demonstrate a "logical connection" between the withheld information, which it characterizes as "ten pages of legal analysis," and the claimed exemption, namely the disclosure of intelligence activities, sources, or methods. Pl.'s Mem. at 15-16. The Department's submissions elucidate, however, that information withheld from the OLC Opinion under Exemption 1 reflects classified factual information provided to OLC by the FBI that, if disclosed, could cause damage to national security, and any portion of the OLC Opinion that contains only legal analysis,
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divorced from classified factual information, has been withheld under Exemption 5, not Exemption 1.7 Plaintiffs argument is thus misplaced.
Last, plaintiff accuses the Department of improperly classifying some of the material to avoid embarrassment or conceal law-breaking. See Pl.'s Mem. at 16-17. The plaintiff however has no evidence to support its bald allegation of government misconduct. Without any evidence suggesting bad faith on behalf of the defendant, I conclude that this information was properly withheld under Exemption 1. See Gov 't Accountability Project v. US. Dep 't ofState, 699 F. Supp. 2d 97, 102 (D.D.C. 2010).
II. FOIA Exemption 5 FOIA Exemption 5 protects from disclosure inter-agency or intra-agency letters or
memoranda ''which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). To qualify for this exemption, a document "must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep 't ofthe Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). Courts have incorporated civil discovery privileges into this exemption, such as attorney work-product, attorney-client privilege, and "deliberative process" privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975); Coastal States Gas Corp. v. DOE, 617 F.2d 854,862 (D.C. Cir. 1980). Here, the defendant asserts both the deliberative process privilege and the attorney-client 7 See Colborn Decl. ~ 11 ("Those portions of the [OLC] Opinion which reflect classified factual information provided to OLC by the FBI are marked classified. Those portions of the [OLC] Opinion that are marked unclassified reflect other confidential factual as well as confidential legal communications provided by the FBI to OLC for the purpose of obtaining JegaJ advice.").
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privilege to withhold the entirety of the OLC Opinion. Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") at 1, ECF No. 11-2. For the following reasons, I agree.
A. Deliberative Process Privilege The deliberative process privilege exempts from disclosure those documents that contain deliberations comprising part of a process by which governmental decisions and policies are made. Klamath Water Users, 532 U.S. at 8. Accordingly, government materials that are both "predecisional" and "deliberative" are shielded by the privilege. Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997); see also Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975) (noting that a document is "deliberative" if it "makes recommendations or expresses opinions on legal or policy matters"); Petroleum Info. Corp. v. Dep't ofthe Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (citing Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)) ("A document is predecisional if it was prepared in order to assist an agency decision-maker in arriving at his decision, rather than to support a decision already made.") (internal quotation marks omitted). "[T]he ultimate purpose of this long-recognized [deliberative process] privilege is to prevent injury to the quality of agency decisions" as well as to encourage ''the frank discussion of legal and policy issues" by ensuring that agencies are not "forced to operate in a fishbowl." Sears, 421 U.S. at 151; Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993); Wolfe v. Dep't ofHealth & Human Servs., 839 F.2d 768, 773 (D.C. Cir. 1988) (en bane). In this case, the Department withholds the entirety of the eleven-page OLC Opinion under the deliberative process privilege because "it constitutes advice used by
13

Case 1:11-cv-00939-RJL Document 22 Filed 09/21/12 Page 14 of 17
decision-makers at the FBI and by other Executive Branch agencies and Department components in the context of their efforts to ensure that any [FBI] information-gathering procedures comply fully with the law." Colborn Decl. ~ 13. In his declaration, Colborn explains that the OLC Opinion was sought by the FBI in connection with the agency's "re-evaluation" of its use of sensitive techniques in national security and law enforcement investigations, in response to questions raised about such techniques by the OIG. !d. In evaluating how it should respond to OIG's draft report on the issue, the FBI thus sought OLC's guidance regarding "the proper interpretation of the law with respect to information-gathering procedures employed by the FBI and other Executive Branch agencies."8 !d. ~ 14. Disclosure of the OLC Opinion, Colborn asserts, "would undermine the deliberative processes of the government and chill the candid and frank communications necessary for effective governmental decision-making." !d. ~ 13.
It is apparent that the OLC Opinion is both predecisional and deliberative in nature, and thus subject to the deliberative process privilege. The OLC Opinion as described in the Department's declarations contains inter-agency material that was generated as part of a continuous process of agency decision-making, namely how to respond to the OIG's critique of the FBI's information-gathering methods in certain investigations. The declarations explain that the OLC prepared the memorandum at issue, which expresses legal opinions and makes recommendations based thereon, to
8 FBI's request to OLC for legal guidance fits squarely within the OLC's principal function: to assist the Attorney General in his role as legal advisor to the President of the United States and to departments and agencies of the Executive branch. Colborn Decl. ~ 2. In this role, the OLC "provides advice and prepares opinions addressing a wide range of legal questions involving the operations of the Executive Branch." Id.
14

Case 1:11-cv-00939-RJL Document 22 Filed 09/21/12 Page 15 of 17
assist the FBI in arriving at its policy decision. 9 The law of our Circuit is clear that under
such circumstances, the OLC Opinion is appropriately exempt from disclosure pursuant
to Exemption 5. 10 Indeed, it is not hard to imagine how disclosure of the OLC Opinion
would likely interfere with the candor necessary for open discussions on the FBI's
preferred course of action regarding the OIG evaluation. See Colborn Decl. ~ 4.
Accordingly, I uphold the DOJ's classification of the OLC Opinion as subject to
the deliberative process privilege and therefore exempt from disclosure under Exemption
5. Because all of the information withheld pursuant to the attorney-client privilege was
9 Although plaintiff may dispute the DOJ' s chronology of events, Pl.'s Mem. at 21-27, agency affidavits are accorded a presumption of good faith. See SafeCard Servs., 926 F.2d at 1200. 10 See, e.g., Grumman, 421 U.S. at 188 ("By including inter-agency memoranda in Exemption 5, Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency not possessing such decisional authority without requiring that the advice be any more disclosable than similar advice received from within the agency."); Brinton v. Dep 't of State, 636 F.2d 600, 604 (D.C. Cir. 1980) ("There can be no doubt that ... legal advice, given in the form of intra-agency memoranda prior to any agency decision on the issues involved, fits exactly within the deliberative process rationale ..."); Coastal States, 617 F.2d at 868 ("series of memoranda to the Assistant Secretary of the Army from the General Counsel ... recommending legal strategy" is a "classic case of the deliberative process at work"); Citizens for Responsibility & Ethics in Wash. v. Office ofAdmin., 249 F.R.D. 1, 5-7 (D.D.C. 2008) (OLC memorandum fits within the scope of deliberative process privilege because it "contains legal advice from the equivalent of [the Office of Administration's] outside counsel", "does not mandate a particular policy", and "can[not] rightly be described as itself a statement of the Executive Branch's legal position"); Elec. Privacy Info. Ctr. v. DOJ, 584 F. Supp. 2d 65, 75 (D.D.C. 2008) ("IfOLC provides legal advice as part of a decision-making process, this legal advice is protected under the deliberative process privilege."); Southam News v. INS, 674 F. Supp. 881, 886 (D.D.C. 1987) (concluding that OLC opinion letters "generated in the course of formulating policies and positions that were being considered" falls within the deliberative process privilege); Morrison v. DOJ, No. 87-3394, 1988 WL 47662, at *1-2 (D.D.C. Apr. 29, 1988) (finding that an OLC legal opinion analyzing the constitutionality of a proposed amendment was exempt from disclosure under the deliberative process privilege).
15

Case 1:11-cv-00939-RJL Document 22 Filed 09/21/12 Page 16 of 17
also withheld pursuant to the deliberative process privilege, I do not need to consider the propriety of the defendant's application of the attorney-client privilege.
B. Segregability Finally, with regard to segregability, it is well established that an agency claiming that a document is exempt under FOIA must, after excising the exempted information, release any reasonably segregable information unless the non-exempt information is inextricably intertwined with the exempt information. Trans-Pac. Policing Agreement v. US. Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999). Here, the Department has sufficiently established that no portion of the OLC Opinion is reasonably segregable and releasable. The DOJ's declarations explicate that, although only portions of the OLC Opinion were withheld under Exemption 1, the entirety of the OLC Opinion was withheld under Exemption 5, leaving nothing significant that could be disclosed in a redacted format. See Hardy DecI. ,-r 5; Colborn Decl. ,-r 11. As the Colborn declaration adequately states, the unclassified portions of the OLC Opinion could not be released without "harm[ing] the deliberative processes of the government" by "chill[ing] the candid and frank communications necessary for effective governmental decision-making." Colborn Decl. ,-r,-r 13, 15. In the absence of contrary evidence or specific cites to potentially unsegregated portions, the declarations are afforded the presumption of good faith. See SafeCard Servs., 926 F.2d at 1200. Therefore, I find that no portion of the OLC Opinion could be segregated and subsequently released.
16

Case 1:11-cv-00939-RJL Document 22 Filed 09/21/12 Page 17 of 17 CONCLUSION
For all of the foregoing reasons, the Court GRANTS the defendant's Motion for Summary Judgment [Dkt. #11] and DENIES plaintiffs Cross-Motion for Summary Judgment [Dkt. #14]. An Order consistent with this decision accompanies this Memorandum Opinion.
17

 
 Case 1:11-cv-00939-RJL Document 26 Filed 03/25/14 Page 1 of 1

~nit£o ~hti£5 <:!lour± of J\pp£als
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12-5363
ELECTROJ'-'IC FRONTIER FOUNDAT!ON, APPELLANT

September Term, 2013
FILED ON: JANUARY 3, 2014

v.

MANDATE

UNITED STATES DEPARTMENT OF JUSTICE, APPELLEE

7 Appeal from the United States District t~;;;::o~~~~:;:;r_~.-~:9=._~_~:-,: .'1 :~.1 for the District of Columbia (No. I: 11-cv-00939)

Before: SRINIVASAN, Circuit Judge, and EDWARDS and SENTELLE, Se11ior Circuit Judges JUDGMENT
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was argued by counseL On consideration thereof, it is
ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affinned, in accordance with the opinion of the court filed herein this date.
Per Curiam

FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Jennifer M. Clark Deputy Clerk

Date: January 3, 2014 Opinion for the court filed by Senior Circuit Judge Edwards.

A True oopy:

urt ofAPPE!8.ls
lumbta Oirouit

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 1 of 20
~nitca ~ht±cs Qlourt of J\ppcals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 26, 2013 Decided Jamtary 3, 2014 No. 12-5363
ELECTRONIC FRONTIER FOUND/\TION,
APPELL/IN r
v.
UNITED STATES DEPARTMENT OF JUSTICE, APPELLEE
Appeal from the United States District Court for the District of Columbia (No. I: 11-cv-00939)
Mark Rumold argued th~ cause for appellant. With him on the briefs was David L. Sobel.
Melanie Sloan and Anne L. Weismann were on the brief for amici curiae Citizens for Responsibility and Ethics in Washington, et al. in support of appellant.
Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were S!uar/ F Delery, Acting Assistant Attorney General. Ronald C Machen Jr., U.S. Attorney, and MichaelS Raab, Attorney, U.S. Department of Justice.

r----------------------------- ---
Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 2 of 20
2
Before: SRINIVASAN, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
EDWARDS, Senior Circuit Judge: Electronic Frontier Foundation ("EFF") appeals the District Court's denial of its request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., for disclosure of a legal opinion (the ''OLC Opinion") prepared for the Federal Bureau of Investigation (the ''FBI") by the Office of Legal Counsel ("OLC") in the Department of Justice. Elec. Frontier Found. v. Dep't of Justice, 892 F. Supp. 2d 95 (D.D.C. 2012). The District Court held that the OLC Opinion, in its entirety. is exempt from FOIA disclosure for two reasons. First, the District Court held that the OLC Opinion is covered by the ''deliberative process privilege" in FOIA Exemption 5, which "covers 'documents reflecting advisory opmtons, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."' Dep 't of Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. I, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)); 5 U.S.C. § 552(b)(5). Second, the District Court concluded that portions of the OLC Opinion are exempt from disclosure under FOIA Exemption I because they are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "are in fact properly classified pursuant to such Executive order." Elec. Frontier Found., 982 F. Supp. 2d at 91-101 (citing 5 U.S.C. § 552(b)(l)).
EFF contests the District Court's holding that the OLC Opinion is covered by the deliberative process privilege. Br. of Appellant at 19-34. EFF argues further that. even if the OLC Opinion might have been covered by the deliberative process

..
Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 3 of 20
3
privilege, the FBI waived the privilege by relying on the OLC Opinion in dealings with Congress and the Office of the Inspector General (the ''OIG''). ld. at 34-37. Finally, EFF claims that the District Court erred in failing to require the agency "to specify in detail which portions of the document are disclosable and which are allegedly exempt" under Exemption l. ld. at 46 (quoting Kimberlin v. Dep 't ofJustice, 139 F.3d 944,950 (D.C. Cir. 1998)), and that it also "erred by failing to determine whether there was unclassified, factual information ... that was 'reasonably segregable' from the [OLC] Opinion's other content." ld. at 50 (quoting 5 U.S.C. § 552(b)).
On the record before us, we hold that the OLC Opinion, which was requested by the FBI in response to the OIG's investigation into its information-gathering techniques, is an "advisory opinion[], recommendation[] and deliberation[] comprising part of a process by which governmental decisions and policies are formulated." and is therefore covered by the deliberative process privilege. Klamath Water Users, 532 U.S. at 8 (quotation omitted). We also hold that the FBI did not "adopt" the OLC Opinion and thereby waive the deliberative process privilege. The OIG mentioned the OLC Opinion in its report, and a congressional committee inquired about the OLC Opinion, but the FBI never itself adopted the OLC Opinion's reasoning as its own. Finally, because the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, we need not decide whether particular sections were properly withheld as classified, or whether some material JS reasonably segregable from the material properly withheld.
I. BACKGROUND
A. Statutory Framework
FOIA requires government agencies to make available "final opinions ... as well as orders." "statements of policy and

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 4 of 20
4
interpretations which have been adopted by the agency," and "administrative staff manuals and instructions ... that affect a
member of the public." 5 U.S.C. § 552(a)(2). FOIA
exemptions allow agencies to withhold information from disclosure if it has been properly classified under criteria established by Executive order ·'to be kept secret in the interest
of national defense or foreign policy," id § 552(b)(l)
(Exemption I), and ''inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,"
id. § 552(b)(5) (Exemption 5). Exemption 5 covers material
that would be protected from disclosure in litigation under one of the recognized evidentiary or discovery privileges, such as the attorney-client privilege. Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir. 201 0) (citing Coastal States Gas Corp. v. Dep 't of Energy. 617 F.2d 854. 862 (D.C. Cir. 1980)). The deliberative process privilege is one of the litigation privileges incorporated into Exemption 5. It allows an agency to withhold "all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.'' Sears, 421 U.S. at 153 (quotations omitted).
B. Procedural History
Several statutes permit the FBI to use "national security letters" to subpoena telephone and financial records that it certifies are connected to an authorized national security investigation. See Br. for Appellee at 4 (citing 12 U.S.C. § 3414(a)(5)(A); 18 U.S.C. § 2709; 15 U.S.C. § 1681u(a)-(b); 50 U.S.C. § 436(a)(l) (transferred to 50 U.S.C. § 3162)). The USA Patriot Improvement and Reauthorization Act of 2005 directed the OIG to audit the ·'effectiveness and use, including any improper or illegal use," of these national security letters. Pub. L. No. 109-177, § 119. 120 Stat. 192 (2006). The OIG's initial report found that the FBI had issued ''exigent letters'' to request records from telephone companies in cases in which

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 5 of 20

5

FBI officials had not certified that the records were part of an

authorized national security investigation, as required for a

bona fide national security letter. U.S. DEP'T OF JUSTICE,

OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE

FEDERAL BUREAU OF INVESTIGATION'S USE OF NATIONAL

SECURITY

LETTERS

92

(March

2007),

http :IIwww.justice.govIoiglspec iaIIsO 703blfi na I. pdf.

Following these findings, the OIG conducted a second

investigation into the FBI's use of exigent letters for requesting

telephone records. DEP'T OF JUSTICE, OFFICE OF THE

INSPECTOR GENERAL, A REVIEW OF THE FEDERAL BUREAU OF

INVESTIGATION'S USE OF EXIGENT LETTERS AND OTHER

INFORMAL REQUESTS FOR TELEPHONE RECORDS (January

2010)

("OIG

Report"), www.justice.gov/oig/specialfs 1001 r.pdf, reprinted

in part in Joint Appendix ("'J.A.") 46. The OIG provided the

FBI with a draft of this report. Valerie Caproni, General

Counsel of the FBI, then sought legal advice from OLC about

the investigative tactics at issue. Dec!. of Paul P. Colborn,

Special Counsel in the Office of Legal Counsel at 4-5,

reprinted in J.A. 21-22 ("Colborn Dec!.").

The OIG Report, which has been publicly disclosed, explains that:
[A]fter reviewing a draft of the OIG report the FBI asked the Office of Legal Counsel (OLC) for a legal opinion on this issue.... [T]he OLC agreed with the FBI that under certain circumstances [redacted authority] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency. , .. [T]he FBI acknowledged in its July 2009 comments to a draft of this report that it had never considered or relied upon [redacted authority] when it obtained any of the telephone records at issue in this report. Moreover it cannot be known at this point whether

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 6 of 20
6
any provider would have divulged such records based on [redacted authority] alone, and without the FBI's representation that a[] [national security letter] or other compulsory legal process would be served.
OIG Report at 264-65, reprinted in J.A. 48-49. The OIG Report concluded that "the potential use of[redacted authority] by the FBI has important policy implications" and "creates a significant gap in FBI accountability and oversight that should be examined closely by the FBI, the Department, and Congress." !d. at 268, reprinted in J.A. 52. However, the OIG Report also acknowledged that ''[t]he FBI has stated that it does not intend to rely on [redacted authority]." !d. at 265 n.283, reprinted in J.A. 49.
On April 14, 20 I0, the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing concerning the O!G Report. As relevant to the OLC Opinion, FBI General Counsel Caproni testified:
The OIG's 2010 report discusses a January 8, 2010 opinion issued by [OLC], which concluded that [the Electronic Communications Privacy Act] does not forbid electronic communications service providers, in certain circumstances, from disclosing certain call detail records to the FBI on a voluntary basis without legal process or a qualifying emergency. Many members of Congress have asked questions about this OLC opinion, which is classified. It is my understanding that it has been shared with our oversight committees, including this Committee, at the appropriate security level. Because of the classified nature of the OLC opinion. l cannot address it in this forum. but am available to discuss it in a secure setting. I can, however, state that the OLC opinion did not in any way factor into the FBI's flawed practice of using exigent letters between 2003 and 2006 nor did it affect in any way the records-retention decisions made by the FBI as part of

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 7 of 20
7
the reconciliation project discussed above.
The Report ofthe Dep 't ofJustice, OIG, Concerning the FBI's use of Exigent Letters and Other Informal Requests for Telephone Records: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciarv. I II th Cong. (April 14, 2010) at 10, reprinted in J.A. 60. 70 (Statement of Valerie E. Caproni, General Counsel, FBI) (''Caproni Testimony").
On February 15, 201 [, EFF submitted a FO!A request for the OLC Opinion. Relying on FOIA Exemptions I and 5. the Department of Justice denied EFF's request because the OLC Opinion contains classified information and is covered by the deliberative process privilege. Letter from Paul P. Colborn, Special Counsel in OLC, to David L. Sobel (Feb. 25, 20 II). reprinted in J.A. 30. EFF filed suit in District Court seeking disclosure of the OLC Opinion. The Depanment of Justice submitted two affidavits in suppon of its motion for summary judgment: Paul Colborn, Special Counsel in OLC, declared that the OLC Opinion is "pre-decisional and deliberative" in nature. and "disclosure ... would undermine the deliberative processes of the government and chill the candid and frank communications necessary for effective decision-making." Colborn Decl. at 6, reprinted in J.A. 23. Colborn further declared that the OLC Opinion is also exempt from disclosure insofar as it contains "content derived from confidential and classified communications made by the FBI to OLC." !d. at 5, reprinted in J.A. 22.
David Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division, of the FBI, declared that portions of the OLC Opinion were properly classified because "unauthorized disclosure of this information 'reasonably could be expected to cause serious damage to the national security."' Corrected Decl. of David M. Hardy at 5. reprinted in J.A. 33-44, 37 (quoting Exec. Order No. 13,526.

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 8 of 20
8
Classified National Security Information, § 1.1 (a), 75 Fed. Reg. 707 (Dec. 29, 2009)). Hardy explained that the information contained in the OLC Opinion is "highly specific in nature and known to very few individuals," it describes intelligence gathering techniques that the FBI presently uses. and disclosure ''would allow hostile entities to discover the current methods and activities used and ... then develop countermeasures which could severely disrupt the FBI's inteHigence-gathering capabilities." !d. at 9, reprinted in J.A. 41.
The District Court concluded that the OLC Opinion is covered by the deliberative process privilege because it "contains inter-agency material that was generated as a continuous process of agency decision-making. namely how to respond to the OlG's cnllque of the FBI's information-gathering methods." 892 F. Supp. 2d at 103. The District Coutt declined to rule on whether attorney-client privilege also exempts the OLC Opinion from disclosure because the deliberative process privilege applies to a[[ portions of the document that would be subject to the attorney-client privilege. !d. The District Court noted that the Department of Justice is "asserting Exemption I only as to certain paragraphs of the OLC Opinion which have been marked as classified in accordance with the classification markings included in the FBI's two letters to OLC requesting legal advice." and it found the Department of Justice's declarations sufficiently specific "to identify the records referenced and understand the basic reasoning behind the claimed exemptions." !d. at I 0 I (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)). The District Court concluded that "no portion of the OLC Opinion is reasonably segregable and releasable" because "the entirety of the OLC Opinion was withheld under Exemption 5, leaving nothing significant that could be disclosed in redacted format." Id. at 104.

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 9 of 20
9
II. ANALYSIS
A. Standard ofReview
We review decisions granting summary judgment in FOIA cases de novo. Sussman v. U.S. Marshals Sen·.. 494 F.3d II 06, llll-12 (D.C. Cir. 2007). The agency bears the burden of showing that a claimed exemption applies. Pub. Citizen, 598 F.3d at 869 (citing Loving v. Dep't of Def, 550 F.3d 32, 37 (D.C. Cir. 2008)). Summary judgment is warranted when the agency's affidavits "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'' Miller 1'. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984) (quotations omitted); Larson v. Dep 't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) ("Ultimately. an agency's justification for invoking a FO lA exemption is sufficient if it appears logical or plausible." (quotations omitted)).
B. Deliberative Process Privilege
The deliberative process privilege protects agencies tram
being ''forced to operate in a fishbowl.'' EPA v. Mink, 410 U.S. 73. 87 (1973) (quotations omitted). And it applies when ''production of the contested document would be injurious to the consultative functions of government that the privilege of nondisclosure protects." !d. (quotations omitted). The privilege "calls for disclosure of all opinions and interpretations which embody the agency's effective law and policy, and the withholding of all papers which retlect the agency's group thinking in the process of working out its policy and determining what its law shall be." Sears, 421 U.S. at 153 (quotations omitted). The privilege is limited to documents that are "predecisional'' and "deliberative," meaning "they 'reflect[] advisory opinions, recommendations, and

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 10 of 20
10
deliberations compnsmg part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency's adoption of a policy."' Pub. Citizen, 598 F.3d at 875 (quoting Taxation With Representation Fundv. IRS, 646 F.2d 666.677 (D.C. Cir. 1981)).
Importantly, the Supreme Court's decision in Sears explained that, under FOIA, agencies must disclose their "working law," i.e. the "reasons which [supplied] the basis for an agency policy actually adopted." 421 U.S. at 152-53. In other words, an agency is not permitted to develop "a body of 'secret law,' used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege because it is not designated as 'formal,' 'binding,' or 'final."' Schiefer v. United States, 702 F.2d 233,244 (D.C. Cir. 1983) (quoting Coastal States, 617 F.2d at 867). Therefore, an agency must disclose ·'binding agency opinions and interpretations" that the agency "actually applies in cases before it.'' ld. (quoting Sterling Drug inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971)).
In Sterling Drug, we required disclosure of memoranda prepared by the Federal Trade Commission to the extent that they contained "orders and interpretations" that the Commission actually applied in a particular acquisition case. 450 F.2d at 708. We explained that the deliberative process privilege's policy "of promoting the free flow of ideas within the agency does not apply here, for private transmittals of binding agency opinions and interpretations should not be encouraged." !d. In Coastal States, we followed this principle to hold that memoranda from regional counsel to auditors in field offices must be disclosed because the memoranda ·'represent[ed] interpretations of established policy on which the agency relies in discharging its regulatory responsibilities." 617 F.2d at 869. Such interpretations "are not the ideas and theories which go into the making of the law. they are the law

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 11 of 20
11
itself, and as such should be made available to the public." !d. at 868 (quoting Srerling Drug, 450 F.2d at 708); accord Schiefer, 702 F.2d at 244 (holding that the privilege does not extend to opinions of the Chief Counsel of the Maritime Administration interpreting statutes the agency administers because they "are authoritative Agency decisions in the cases to which they are addressed and ... also guide subsequent Agency rulings").
The same principle applied in Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (Tax Analysts!), where we held that the privilege did not cover advice memoranda from the Office of the Chief Counsel to field personnel providing legal guidance with respect to the situations of specific tax payers. !d. at 609, 6!8. We explained that the "structure and purposes'' of the system of issuing advisory memoranda to field personnel "reveal that the national office, in issuing these memoranda, is attempting to develop a body of coherent, consistent interpretations of federal tax laws nationwide." !d. at 617. Hence, even though the memoranda are "nominally non-binding," they are "considered statements of the agency's legal position." !d. Reaching the same conclusion with respect to similar advice memoranda in Tax AnalysTs v. IRS, 294 F.3d 71 (D.C. Cir. ~002) (Tax Analysts II}, we noted that the memoranda used language such as "[i]t is the position of the Treasury Department that ..." and "[w]e conclude." !d. at 81. We explained that the "tone of these [memoranda] indicates that they 'simply explain and apply established policy."' !d. (quoting Coastal Srates, 617 F.2d at 869).
In Public Citi::en, we found that the deliberative process privilege did not cover Office of Management and Budget ("OMB") memoranda describing which agencies were permitted, by statute or by prior OMB practice, to submit their budgetary materials to Congress without first clearing them with OMB. 598 F.3d at 868. We found that these documents "determine OMB's interaction with outsiders" and had

Case 1:11-cv-00939-RJL Document 26-1 Filed 03/25/14 Page 12 of 20
12
"real-world effects on the behavior of ... agencies," id. at 872; the documents thus "reflect[ed] OMB's formal or informal policy" and "fit comfortably within the working law framework," id. at 875.
None of the foregoing authorities is dispositive here, however, because OLC did not have the authority to establish the "working law" of the FBI. OLC therefore did not ··explain and apply established policy." Tax Analysts II, 294 F.3d at 8\ (quoting Coastal States, 617 F.2d at 869). The OLC Opinion instead amounts to advice offered by OLC for consideration by officials of the FBI. Such a memorandum is not the law of an agency unless the agency adopts it. See Part C. infra.
The authorities that control the disposition of this case are the decisions holding that the deliberative process privilege does cover legal memoranda that concern the advisability of a particular policy. but do not authoritatively state or determine the agency's policy. For example, we have held exempt from disclosure memoranda containing legal advice from the Legal Adviser to the Secretary of State "concerning United States policy on issues involving" affairs in the Middle East. Brinton v. Dep 't ofState, 636 F.2d 600, 602 (D.C. Cir. 1980). The court explained that "[t]here can be no doubt that such legal advice, given in the form of intra-agency memoranda prior to any agency decision on the issues involved, fits exactly within the deliberative process rationale for Exemption 5." !d. at 604. The Legal Adviser's "role is to give advice to those in the State Department who do make the policy decisions," and, thus, the "flow of advisory material is exactly opposite of the paradigm of 'final opinions,' which typically flow tram a superior with policy-making authority to a subordinate who carries out the policy." /d. at 605 (citation omitted). In Murphy v. Dep't of Army, 613 F.2d 1151, 1154 ( 1979), this court held that the privilege covers a memorandum from the Army General Counsel to Assistant Secretary providing advice on whether to enter a contract, because ·'[t]he Assistant Secretary who had

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13
decision-making power ... sought advice from the general counsel ... on the legal questions raised." (citations omitted) (emphasis added).
EFF argues that the OLC Opinion constituted the "working law" of the FBI because it "constituted 'guidance' used by [the agency] in [its] dealings with the public." Br. of Appellant at 29 (quoting Coastal States, 617 F.2d at 869). The Government counters that the FBI's "[c]onsultation with legal advisers at the Department of Justice constitutes precisely the sort of 'give-and-take of the consultative process' that the deliberative process privilege was designed to protect." Br. for Appellee at 15 (quotations omitted). According to the Government, OLC's Opinion is not the FBI's "tinal decision about how, if at all, to alter its investigatory techniques," because "th[is] decision was the FBI's to make after consulting with OLC and any other parts of the government it chose to involve in its policy-making process." !d. (quotatiL1ns omitted).
Because OLC cannot speak authoritatively on the FBI's policy, the OLC Opinion differs from memoranda we have found to constitute the "working law" of an agency. In each of these cases, to avoid the development of "secret law," the agency was required to disclose a document that represented a conclusive or authoritative statement of its policy, usually a higher authority instructing a subordinate on how the agency's general policy applies to a particular case, or a document that determined policy or applied established policy. In contrast, the OLC Opinion is more similar to the advice from the Legal Adviser to the Secretary of State pertaining to policy in the Middle East in Brinton, or the advice from the Army's General Counsel pertaining to the advisability of a certain contract in lvfurphy. OLC is not authorized to make decisions about the FBI's investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency's policy. See Colborn Dec!. at I-2, reprinted in J.A. I 8-19 ("OLC does not purport, and in fact lacks authority, to make policy decisions. OLC's

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legal advice and analysis may infonn the decisionmaking of Executive Branch officials on matters of policy, but OLC's legal advice is not itself dispositive as to any policy adopted.").
EFF argues that the OLC Opinion must be "working law" because it is controlling (insofar as agencies customarily follow OLC advice that they request), precedential, and can be withdrawn. Br. of Appellant at 22-24, 30-34. That the OLC Opinion bears these indicia of a binding legal decision does not overcome the fact that OLC does not speak with authority on the FBI's policy; therefore, the OLC Opinion could not be the ''working law" of the FBI unless the FBI "adopted" what OLC offered. In Brinton, we rejected the appellant's claim that memoranda must be released because they constituted the "final opinions'' of the Department of State. We explained that while the privilege does not protect final decisions or authoritative statements on agency policy, the ·'final opinions" of the Department of State's Legal Adviser, "who has no authority to make final decisions concerning United States policy in the Middle East,'' are not final decisions of the Department of State. 636 F.2d at 605. The same is true of the OLC Opinion in this case.
Even if the OLC Opinion describes the legal parameters of what the FBI is permitted to do, it does not state or determine the FBI's policy. The FBI was free to decline to adopt the investigative tactics deemed legally permissible in the OLC Opinion. Indeed, the OIG's report acknowledged that the FBI had "declined, for the time being, to rely on the authority discussed in the OLC Opinion." Br. for Appellee at !5-!6 (citing OJG Report at 265 n.283, reprinted in J.A. 49). The OLC Opinion does not provide an authoritative statement of the FBI's policy. It merely examines policy options available to the FBI. Therefore. the OLC Opinion is not the "working law" of the FBI.
On this record, we hold that the OLC Opinion reflects

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precisely the sort of"advisory opinion ... comprising part of a process by which governmental decisions and policies are formulatt<d" that is covered by the deliberative process privilege. Pub. Citizen, 598 F.3d at 875 (quotations omitted); accord Brennan Ctr.for Justice at New York Univ. Sch. ()(Law " US. Dep't of Jus/ice, 697 F.3d 184. 203 (2d Cir. 2012) ('The [OLC] Memorandum does not constitute working law, or the agency's effective law and policy." (quotations omitted)); Nat 'I Council ol La R<ca v. Dep ., ol Justice, 411 F.3d 350, 356 n.4 (2d Cir. 2005) (presuming OLC memorandum satisfies requirements of deliberative process privilege).
C. Waiver by Public Adoption or Reliance
In Sears, the Court explained that Exemption 5 does not apply "if an agency chooses expressly to adopt or incorporate by reference" a memorandum that would have otherwise been protected by the privilege. 421 U.S. at 161 ("[W]hen adopted, the reasoning becomes that of the agency and becomes its responsibility to defend.''). The same day Sears was decided, the Court also held in Renegotiation Bd. v. Grumman Aircraft Eng 'g Corp., that the ''adoption" exception to Exemption 5 did not apply to reports addressing whether government contractors were required to refund excessive profits under their contracts, even though the agency's decision agreed with the reports' conclusion. The decision clarified that in order for the exception to apply, it must be evident that ''the reasoning in the report is adopted by the [agency] as ils reasoning, even when [the agency's decision] agrees with the conclusion of a report." 421 U.S. 168, 184 (1975).
We have thus recognized that "the Court has refused to equate reference to a report's conclusions with adoption of its reasoning, and it is the latter that destroys the privilege." Access Reports v. Dep 'I ofJustice, 926 F.2d 1192, 1197 (D.C. Cir. 1991) (a department head's "confused statement" in

;r-------------------~~~--
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testimony before a Senate committee that might be read as a reference to the privileged document "fell far short of the express adoption required by Sears"); Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981) ("[C]asual allusion in a post-decisional document to subject matter discussed in some pre-decisional, intra-agency memoranda is not the express adoption or incorporation by reference which . . . would remove the protection of Exemption 5."). These decisions stand in contrast to Afshar v. Dep 't of State, 702 F.2d 1125, 1140 (D.C. Cir. 1983), where the court held that when "predecisional recommendations ... are expressly adopted in [a] final, nonexempt memorandum, ... 'the reasoning becomes that of the agency and becomes its responsibility to defend."' /d. at 1142 (quoting Sears, 421 U.S. at 161) (emphasis in Sears). In this case, EFF cannot point to any evidence supporting its claim that the FBI expressly adopted the OLC Opinion as its reasoning.
EFF argues that the FBI "adopted" the OLC Opinion by "approving[] public references in non-privileged agency documents (like the OJG report) and reliance in congressional testimony." Br. of Appellant at 36. EFF relies on two decisions in which the Second Circuit held that an agency waived the privilege by referencing an OLC memorandum in its dealings with the public. !d. (citing Brennan Ctr., 697 F.3d at 204; La Raza, 411 F.3d at 357). But these cases are inapposite because, in each one, the agency ilse/fpublicly invoked the reasoning of the OLC memorandum tojust{fy its new position.
In La Raza, the court found that the "Attorney General and his high-level staff made a practice of using the OLC Memorandum to justify and explain the Department [of Justice]'s policy and to assure the public and the very state and local government officials who would be asked to implement the new policy that the policy was legally sound." 411 F.3d at 358. In Brennan Center, a U.S. Agency for International Development guidance document referenced an OLC Opinion

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17
as a basis for exempting U.S. non-governmental organizations from a requirement to pledge to oppose sex trafficking in order to receive aid. 697 F.3d at 191. And when the agency changed this policy, a director explained during Congressional hearings that OLC had changed its position, and he was ·'simply Collowing . . . the advice'' of OLC. Jd. at 192 (quotations omitted).
This case differs from the cases cited by EFF because the public references to the OLC Opinion did not come from the FBI itself. Rather, the public references originated from the OIG and Congress. The OIG mentioned the OLC Opinion in its Report and Caproni was asked about it by members of Congress. However. the FBI never itself publicly invoked or relied upon the contents of the OLC Opinion. Grumman explained that the adoption exception only applies if ''the reasoning in the [privileged document] is adopted by the [agency] as its reasoning." 421 U.S. at 184 (emphasis added). The OIG's references to the OLC Opinion do not establish that the FBI adopted the OLC Opinion as its own reasoning. Nor does Caproni's response to inquiries from members of Congress establish that the FBI adopted the OLC Opinion's reasoning as its own. Colborn explained that the OLC Opinion "has not been made public, and to the extent that it has been shared with others in the Government, these individuals would . . . only have been persons with an appropriate security clearance and a need to know-that is, individuals whose job responsibilities related to national security.'' Colborn Decl. at 6, reprinted in J.A. 23. Colborn made it clear that anyone who viewed the OLC Opinion "would have understood the need for confidentiality." Jd.
When Caproni mentioned the OLC Opinion during congressional hearings, she noted that "[m]any members of Congress have asked questions about this OLC opinion." Caproni Testimony at 10. reprimed in J.A. 70. In other words, Caproni referenced the OLC Opinion in response to inquiries,

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rather than affirmatively raising it to justify the FBI's policy. Caproni's testimony thus differs from the communications in Afshar, the congressional testimony in Brennan Center, and the statements in La Raza. In Afshar, the court found that the disputed memoranda in that case were predecisional when written, but the recommendations that they contained were not protected by the deliberative process privilege once they were "expressly adopted as the basis for agency action." 702 F.2d at 1!40. In Brennan Center. a director of the agency explained that he changed positions ·'following" advice of OLC, and described that advice. 697 F.3d at 192. In La Raza, the District Court found that the Department of Justice had, "through the public statements of its representatives, incorporated the OLC Memorandum into Department policy." 411 F.3d at 355. In contrast, Caproni never claimed that the FBI's investigative tactics were justified by the OLC Opinion. To the contrary, she actually disavowed reliance on the OLC Opinion, stating that it "did not in any way factor into the FBI's flawed practice of using exigent letters between 2003 and 2006 nor did it affect in any way the records-retention decisions made by the FBI as part of the reconciliation project." Caproni Testimony at !0. reprinted in J.A. 70. Far from publicly using the OLC Opinion to justify the FBI's position, Caproni 's testimony indicates that the OLC Opinion did not determine the FBI's actions or policy.
D. Segregability
It is undisputed that under FOIA non-exempt information that is "reasonably segregable" from exempt information must be disclosed. 5 U.S.C. § 552(b). EFF contends that the District Court "erred by failing to determine whether there was unclassified, factual information within the OLC Opinion that was 'reasonably segregable' from the Opinion's other content." Br. for Appellant at 50. We disagree. In a section entitled "Segregability," the District Court specifically held that "the Department has sut1iciently established that no

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portion of the OLC Opinion is reasonably segregable and releasable." 892 F. Supp. 2d at 104. This holding is supported by the record. See Colborn Dec!. at 5-7, reprinted in J.A. 22-24.
In pressing its claim for segregability, EFF relies on Loving v. Dep 't of Defense for the proposition that "the deliberative process privilege does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must." 550 F.3d 32, 38 (D.C. Cir. 2008) (citing Army Times Pub/'g Co. v. Dep 't of Air Force, 998 F.2d 1067,1071 (D.C. Cir. 1993)).ln response, the Government points out that:
The OLC declarant explained that "[t]hose portions of the Opinion that are marked unclassified reflect other confidential factual as well as confidential legal communications provided by the FBI to OLC for the purpose of obtaining legal advice." This statement confirms that the entire document reflects the full and frank exchange of ideas between the FBI and OLC. and that revealing portions of the document would reveal the substance of those privileged communications.
Br. for Appellee at 40 (quoting Colborn Dec!. at 5-6, reprinted in J.A. 22-23 (emphasis added)).
We agree with the Government that EFF has "ignor[ed] the context in which factual statements were made [in asserting] that 'factual material cannot generally be withheld under the deliberative process privilege."' !d. (quoting Br. for Appellant at 51). In other words, because context matters, the proposition advanced by EFF is not inviolate. This point was made clear by the en bane court in fVoife v. Dep 't ofHealth and Human Serv., 839 F.2d 768 (D.C. Cir. 1988). In Wolfe, we explained that
[i]n some circumstances, even material that could be

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characterized as "factual" would so expose the deliberative process that it must be covered by the privilege. We know of no case in which a court has used the fact/opinion distinction to support disclosure of facts about the inner workings of the deliberative process itself.
fd. at 774 (citation omitted); accord In reSealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) ('The deliberative process privilege does not shield ... material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations.").
Based on the declarations provided by the Government, the District Court correctly concluded that "the unclassified portions of the OLC Opinion could not be released without harming the deliberative processes of the government by chilling the candid and !rank communications necessary for effective governmental decision-making."' 892 F. Supp. 2d at J 04 (citation, quotations, and alterations omitted). The reasoning in Wolfe is thus controlling here.
E. Exemption I
Because we find that the entire OLC Opinion is exempt !rom disclosure under the deliberative process privilege, there is no need for this court to determine whether certain portions of the OLC Opinion were properly withheld as classified under Exemption I.
Ill. CONCLUSION
For the foregoing reasons, we affirm the judgment of the District Court.

 
 Case: 1:11-cv-939 As of: 05/14/2015 12:22 PM EDT 1 of 3
CLOSED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:11−cv−00939−RJL

ELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT Date Filed: 05/19/2011

OF JUSTICE

Date Terminated: 09/21/2012

Assigned to: Judge Richard J. Leon

Jury Demand: None

Case in other court: 12−05363

Nature of Suit: 895 Freedom of

Cause: 05:552 Freedom of Information Act

Information Act Jurisdiction: U.S. Government Defendant

Plaintiff

ELECTRONIC FRONTIER FOUNDATION

represented by David L. Sobel ELECTRONIC FRONTIER FOUNDATION 5335 Wisconsin Avenue, NW Suite 640 Washington, DC 20015−2052 (202) 246−6180 Fax: (415) 436−9993 Email: sobel@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF JUSTICE

represented by Elisabeth Layton U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Suite 7110 Washington, DC 20530 (202) 514−3183 Email: elisabeth.layton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/19/2011
05/19/2011 05/19/2011
06/10/2011 06/20/2011 07/20/2011 08/04/2011

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616038972) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 05/20/2011)
SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 05/20/2011)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ELECTRONIC FRONTIER FOUNDATION (jf, ) (Entered: 05/20/2011)
3 STANDING ORDER. Signed by Judge Richard J. Leon on 6/10/2011. (lcrjl3) (Entered: 06/10/2011)
4 ANSWER to 1 Complaint by DEPARTMENT OF JUSTICE.(Layton, Elisabeth) (Entered: 06/20/2011)
5 MEET AND CONFER STATEMENT. (Layton, Elisabeth) (Entered: 07/20/2011)
6 ERRATA Proposed Order by DEPARTMENT OF JUSTICE 5 Meet and Confer Statement. (Layton, Elisabeth) (Entered: 08/04/2011)

Case: 1:11-cv-939 As of: 05/14/2015 12:22 PM EDT 2 of 3

08/08/2011 09/30/2011 10/07/2011
11/04/2011 11/07/2011 11/10/2011 12/13/2011 12/13/2011 12/13/2011 12/19/2011 12/27/2011 12/28/2011 01/09/2012 01/10/2012 01/10/2012

7 ORDER : Defendant's Motion for Summary Judgment due by 10/7/2011. Plaintiff's Opposition thereto and Cross−Motion for Summary Judgment due by 11/7/2011. Defendant's Reply and Opposition due by 11/21/2011. Plaintiff's Reply by 12/5/2011. Signed by Judge Richard J. Leon on 8/5/2011. (see order) (kc) (Entered: 08/08/2011)
8 Unopposed MOTION for Extension of Time to File Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 09/30/2011)
9 ORDER granting 8 Defendant's Motion for Extension of Time. Defendant's Motion for Summary Judgment is due by 11/4/2011; Plaintiff's Opposition and Cross−Motion is due by 12/7/2011; Defendant's Reply to Summary Judgment and Opposition to the Cross−Motion is due by 12/21/2011; Plaintiff's Reply to the Cross−Motion is due by 1/6/2012. Signed by Judge Richard J. Leon on 10/3/2011. (jth) (Entered: 10/07/2011)
10 Unopposed MOTION for Extension of Time to File Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 11/04/2011)
MINUTE ORDER granting 10 Unopposed Motion for Extension of Time to File Defendant's Motion for Summary Judgment. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 11/7/2011. (lcrjl3) (Entered: 11/07/2011)
11 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration of David M. Hardy, # 4 Declaration of Paul P. Colborn, # 5 Text of Proposed Order)(Layton, Elisabeth) (Entered: 11/10/2011)
12 NOTICE OF FILING CORRECTED DECLARATION OF DAVID M. HARDY by DEPARTMENT OF JUSTICE re 11 MOTION for Summary Judgment (Attachments: # 1 Errata Corrected Declaration of David M. Hardy)(Layton, Elisabeth) (Entered: 12/13/2011)
13 Memorandum in opposition to re 11 MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts (Response), # 4 Text of Proposed Order)(Sobel, David) (Entered: 12/13/2011)
14 Cross MOTION for Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 12/13/2011)
15 Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment, 14 Cross MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 12/19/2011)
MINUTE ORDER granting 15 Unopposed Motion for Extension of Time to File Response. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 12/27/11.(lcrjl3) (Entered: 12/27/2011)
Set/Reset Deadlines: Defendant's Reply to the Motion for Summary Judgment and Response to Plaintiff's Cross Motion is due by 1/9/2012. Plaintiff's Reply to the Cross Motion is due by 1/25/2012. (jth) (Entered: 12/28/2011)
16 Unopposed MOTION for Extension of Time to File Defendant's Opposition To Plaintiff's Cross−Motion For Summary Judgment And Reply In Support Of Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 01/09/2012)
17 REPLY to opposition to motion re 11 MOTION for Summary Judgment, filed by DEPARTMENT OF JUSTICE. (Layton, Elisabeth) Modified link on 1/11/2012 (znmw, ). (Entered: 01/10/2012)
18 Memorandum in opposition to re 14 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (See Docket Entry 17 to view document. Counsel is reminded to file a combined reply and opposition as two separate docket entries in future). (znmw, ) (Entered: 01/11/2012)

Case: 1:11-cv-939 As of: 05/14/2015 12:22 PM EDT 3 of 3

01/11/2012 01/24/2012 01/27/2012 01/30/2012 02/07/2012 09/21/2012 09/21/2012
11/15/2012
11/16/2012 11/16/2012 03/25/2014

MINUTE ORDER granting 16 Unopposed Motion for Extension of Time to File Defendant's Opposition. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 01/11/12. (lcrjl3) (Entered: 01/11/2012)
19 Consent MOTION for Extension of Time to File Response/Reply (Two Days) by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 01/24/2012)
MINUTE ORDER granting 19 Consent Motion for Extension of Time to File Response/Reply. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 1/27/2012. (lcrjl3) (Entered: 01/27/2012)
20 REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sobel, David) (Entered: 01/30/2012)
21 NOTICE OF SUPPLEMENTAL AUTHORITY by ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 02/07/2012)
22 MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 9/21/2012. (kc ) (Entered: 09/21/2012)
23 ORDER, For the reasons set forth in the Memorandum Opinion entered this date, it is this 21st day of September, 2012, hereby ORDERED that defendant's Motion 11 for Summary Judgment is GRANTED; it is further ORDERED that plaintiff's Cross−Motion 14 for Summary Judgment is DENIED. Signed by Judge Richard J. Leon on 9/21/2012. (see order) (kc ) (Entered: 09/21/2012)
24 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 23 Order on Motion for Summary Judgment,,, 22 Memorandum & Opinion by ELECTRONIC FRONTIER FOUNDATION. Filing fee $ 455, receipt number 0090−3133183. Fee Status: Fee Paid. Parties have been notified. (Sobel, David) (Entered: 11/15/2012)
25 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 24 Notice of Appeal to DC Circuit Court,. (znmw, ) (Entered: 11/16/2012)
USCA Case Number 12−5363 for 24 Notice of Appeal to DC Circuit Court, filed by ELECTRONIC FRONTIER FOUNDATION. (jf, ) (Entered: 11/16/2012)
26 MANDATE of USCA (certified copy) as to 24 Notice of Appeal to DC Circuit Court, filed by ELECTRONIC FRONTIER FOUNDATION ; ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date. USCA Case Number 12−5363. (Attachments: # 1 USCA Opinion)(md, ) (Entered: 03/27/2014)