Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 1 of 11

1 Marcia Hofmann (SBN 250087)
Law Office of Marcia Hofmann 2 25 Taylor Street
San Francisco, CA 94102 3 Telephone: (415) 830-6664
marcia@marciahofmann.com 4
D. Victoria Baranetsky (pro hac vice application pending) 5 FREEDOM OF THE PRESS FOUNDATION
601 Van Ness Ave., Suite E731 6 San Francisco, CA 94102
Telephone: (415) 767-5566 7 victoriabaranetsky@gmail.com

8 Attorneys for Plaintiff
FREEDOM OF THE PRESS FOUNDATION 9

10

UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 FREEDOM OF THE PRESS FOUNDATION, )

)

14

15

v.

Plaintiff,

) COMPLAINT FOR INJUNCTIVE

) )

RELIEF

)

16 UNITED STATES DEPARTMENT OF

) )

17 JUSTICE,

)

)

18

Defendant. )

)

19

20

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

21 for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of

22 records requested from the Federal Bureau of Investigation concerning the procedures by which the

23 Bureau issues National Security Letters and exigent letters to investigate members of the press.

24 There is no dispute that the requested records concern a matter about which there is “[a] matter of

25 widespread and exceptional media interest in which there exist possible questions about the

26 government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 28 C.F.R.

27 § 16.5(d)(1)(iv). Therefore, Plaintiff is statutorily entitled to the expedited treatment it seeks.

28

-1-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 2 of 11

1

PARTIES

2

2. Plaintiff Freedom of the Press Foundation (“FPF”) is a non-profit organization

3 established under the laws of the State of California, with its primary office in San Francisco,

4 California. The organization’s mission is to advocate for government transparency and

5 accountability by preserving the rights guaranteed to the press under the First Amendment and

6 fortifying the public’s right to know. As part of that mission, FPF campaigns for policy changes to

7 protect members of the media, educates the public about government protocols and procedures

8 involving the press, and supports the development of technology to protect investigative

9 newsgathering. FPF also uses FOIA to obtain and publish documents detailing government

10 activities that impinge on press freedom.

11

3. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch

12 of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. §552(f)(1).

13 The Federal Bureau of Investigation (“FBI”) and Office of Information Policy (“OIP”) are

14 components of DOJ.

15
JURISDICTION 16
4. The Court has subject matter jurisdiction over this action and personal jurisdiction 17
over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). The Court also has 18
jurisdiction over this action pursuant to 28 U.S.C. § 1331. 19

20

VENUE AND INTRADISTRICT ASSIGNMENT

21

5. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §

22 1391(e).

23

6. Assignment to the San Francisco division is proper pursuant to Local Rule 3-2(c)

24 and (d) because a substantial portion of the events giving rise to this action occurred in this district

25 and division, where Plaintiff is located.

26 //

27 // 28 //

-2-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 3 of 11

1

FACTUAL BACKGROUND

2

The DOJ’s Guidelines for Obtaining Information

3

About the Media and Recent Surveillance of Journalists in Leak-Related Investigations

4

7. The DOJ maintains special regulatory guidelines instructing federal officers how to

5 gather information about members of the news media during investigations, which are codified at

6 28 C.F.R. § 50.10 (hereafter “Media Guidelines,” discussed more below). To protect the First

7 Amendment interests of the press, the Media Guidelines require agents to observe advance

8 procedures before they can compel production of reporters’ telephone records and other

9 information about members of the press.

10

8. The Media Guidelines have recently undergone two revisions in the wake of public

11 criticism of the Obama Administration’s heightened focus on journalists in investigations of leaked

12 classified information.

13

9. To date, the Administration has filed criminal charges against eight government

14 whistleblowers for allegedly leaking classified information to members of the media in violation of

15 the Espionage Act of 1917, 18 U.S.C. §§ 793 and 798. All previous presidential administrations

16 combined have filed Espionage Act charges in only three leak-related cases.

17

10. On May 13, 2013, the Associated Press revealed that the DOJ had secretly seized

18 telephone records for at least twenty phone lines used by the media organization’s reporters and

19 editors to communicate with confidential sources and others. Letter from Gary Pruitt, Executive

20 President and CEO, Associated Press, to Attorney General Eric Holder, Department of Justice

21 (May 13, 2013), http://www.ap.org/Images/Letter-to-Eric-Holder_tcm28-12896.pdf. At that time,

22 the U.S. Attorney’s Office in the District of Columbia was conducting an ongoing investigation

23 into the leak of information about a Central Intelligence Agency operation disrupting of a Yemen-

24 based terrorist plot. The AP condemned the government’s conduct as a “serious interference” with

25 its First Amendment rights. Id.; see also Charlie Savage and Leslie Kaufman, Phone Records of

26 Journalists Seized by U.S., N.Y. TIMES, May 13, 2013, at A1, http://nyti.ms/1xVYWfe.

27

11. Six days later, media outlets reported that the DOJ had investigated James Rosen,

28

-3-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 4 of 11

1 chief Washington correspondent for Fox News, in connection with a possible leak of classified

2 information by a government contractor. Ann E. Marimow, A Rare Peek Into a Justice

3 Department Leak Probe, WASHINGTON POST, May 19, 2013, http://wapo.st/115Hzqg. The DOJ

4 reportedly “used security badge access records to track the reporter’s comings and goings from the

5 State Department,” “traced the timing of his calls with a State Department security advisor,” and

6 “obtained a search warrant for the reporter’s personal email.” Id. When applying for that search

7 warrant to the court, an investigative agent characterized Rosen in an affidavit as an “aider, abettor,

8 and/or co-conspirator” to the leak in violation of the Espionage Act. Id.

9

12. Furthermore, Pulitzer Prize-winning Washington Post reporter Barton Gellman

10 believes the FBI obtained his phone records through a National Security Letter. Darren

11 Samuelsohn, Barton Gellman Aware of Risks, POLITICO, Feb. 25, 2014,

12 http://www.politico.com/blogs/media/2014/02/barton-gellman-ready-for-doj-183998.html.

13

13. Reports of the DOJ’s investigation of journalists from the Associated Press and Fox

14 News have prompted government watchdogs, news agencies, and First Amendment scholars to

15 express grave concern about the DOJ’s surveillance of the press. See, e.g., ACLU and Human

16 Rights Watch, The Impact of Digital Surveillance on Journalists, Lawyers, and Human Rights

17 Defenders (2014); Ann E. Marimow, Justice Department’s Scrutiny of Fox News Reporter James

18 Rosen in Leak Case Draws Fire, WASHINGTON POST, May 20, 2013, http://wapo.st/18ZTg9P;

19 Leonard Downie Jr. and Sara Rafsky, The Obama Administration and the Press, COMMITTEE TO

20 PROTECT JOURNALISTS, Oct. 10, 2013, https://cpj.org/x/5729.

21

14. Members of Congress have also voiced alarm about the DOJ’s investigation of

22 journalists in criminal leak-related matters. Letter from Chairman Bob Goodlatte, United States

23 House Judiciary Committee, and Chairman F. James Sensenbrenner, Jr., Crime, Terrorism,

24 Homeland Security, and Investigations Subcommittee, to Attorney General Eric Holder,

25 Department of Justice (May 29, 2013), http://judiciary.house.gov/index.cfm/press-

26 releases?ID=1B5AA9A4-C8E0-B782-473E-C7B3BF895DD2; see also House Republicans

27 Challenge Holder Testimony on Reporter Surveillance, FOXNEWS.COM, May 29, 2013,

28 http://fxn.ws/12OsiNz.

-4-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 5 of 11

1

The FBI’s Longstanding and Well Documented Misuse of

2

National Security Letters and Exigent Letters, Including in Leak-Related Investigations

3

15. 18 U.S.C. § 2709 authorizes the FBI to issue National Security Letters (“NSLs”) to

4 obtain subscriber information, toll billing records, and transactional records from wire or electronic

5 communications service providers in national security investigations. The FBI issues these NSLs

6 without any prior judicial review, and Section 2709(c) allows the FBI to impose an indefinite

7 nondisclosure order on an NSL recipient.

8

16. Section 2709 NSLs are a highly controversial investigative tool. Indeed, this Court

9 has held that parts of the NSL statutory framework are facially unconstitutional because they

10 violate the First Amendment and separation of powers principles. In re NSL, 930 F. Supp. 2d

11 1064, 1081 (N.D. Cal. 2013). That decision is stayed pending an appeal in which the Ninth Circuit

12 is considering three consolidated cases challenging the constitutionality of the NSL statutory

13 framework. Under Seal v. Lynch, Nos. 13-15957, 13-16731, 13-16732 (9th Cir. argued Oct. 8,

14 2014). At least one other action is currently pending in this Court disputing the constitutionality of

15 the framework. Twitter, Inc. v. Lynch, No. 4:14-cv-04480-YGR (N.D. Cal. filed Oct. 7, 2014).

16

17. The Department of Justice Office of Inspector General (“OIG”) has issued two

17 reports exhaustively documenting the FBI’s widespread, systematic misuse of NSLs between 2003

18 and 2006. See generally Department of Justice Office of the Inspector General, A Review of the

19 Federal Bureau of Investigation’s Use of National Security Letters (March 9, 2007) (“2007

20 Report”); Department of Justice Office of the Inspector General, A Review of the FBI’s Use of

21 National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in

22 2006 (March 2008) (“2008 Report”).1

23

18. While the FBI adopted some corrective measures in response to the OIG’s findings,

24 a follow-up report issued in 2014 found that the FBI may have continued to issue NSLs beyond the

25 scope permitted by Section 2709. Department of Justice Office of the Inspector General, A Review

26 of the Federal Bureau of Investigation’s Use of National Security Letters: Assessment of Progress

27

28 1 The OIG reports cited in this complaint are available at www.usdoj.gov/oig.

-5-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 6 of 11

1 in Implementing Recommendations and Examination of Use in 2007 through 2009 viii (Aug. 2014)

2 (“2014 Report”).

3

19. In a separate report prompted by the findings in the 2007 and 2008 Reports, the OIG

4 determined that the FBI also issued hundreds of so-called “exigent letters” and used other informal

5 methods to obtain telephone records from three major telephone carriers without serving prior legal

6 process. 2007 Report at 87-98; see generally Department of Justice Office of the Inspector

7 General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other

8 Informal Requests for Telephone Records (Jan. 2010) (“2010 Report”).

9

20. The exigent letters were not authorized by any law, flouted internal FBI policy, and

10 violated the Attorney General’s Guidelines for FBI National Security Investigations and Foreign

11 Intelligence Collection. 2007 Report at 95-99; 2010 Report at 10-11.

12

21. The OIG identified at least three media leak investigations in which the FBI

13 improperly used an exigent letter and grand jury subpoenas to obtain telephone records or calling

14 activity information for telephone numbers assigned to reporters. 2010 Report at 89-122.

15

22. The FBI issued the exigent letter to obtain toll billing records of reporters for the

16 Washington Post and New York Times. 2010 Report at 37.

17

23. While the DOJ’s Media Guidelines detail procedures for issuing subpoenas in

18 media-related investigations, the procedures do not address the use of NSLs or exigent letters to

19 obtain information about members of the press.

20

24. With respect to the three media leak investigations discussed in the 2010 Report, the

21 OIG found that the FBI failed to comply with the Media Guidelines and DOJ policy requiring

22 “Attorney General approval and a balancing of First Amendment interests and the interests of law

23 enforcement before issuing subpoenas for the production of reporters’ telephone toll billing

24 records.” 2010 Report at 89.

25

25. The OIG recommended that the FBI and the Department implement specific

26 controls and procedures to correct the misuses of investigative authority detailed in the 2007, 2008,

27 and 2010 reports. 2014 Report at viii.

28

26. According to the 2014 Report, the FBI did in fact implement “specific [new]

-6-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 7 of 11

1 procedures” in 2011 for investigations involving the media (as indicated by the citation to 28

2 C.F.R. § 50.10):

3

4

5

6

7

8

9

10

11 2014 Report at 179.

12

27. The OIG also recommended that the FBI’s procedures for obtaining information

13 about members of the media should be reviewed by the DOJ because of “significant First

14 Amendment issues.”

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2014 Report at 192.

-7-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 8 of 11

1

28. These excerpts suggest that the FBI has specific procedures for obtaining

2 information about journalists through NSLs or exigent letters that are not specifically addressed in

3 the Media Guidelines, and are therefore unknown to the public.

4

The DOJ’s Recently Updated Media Guidelines

5

Fail to Include Procedures for Issuing National Security Letters or Exigent Letters

6

29. On July 12, 2013, in response to criticism from the press, public, and members of

7 Congress about increased investigation of the media in leak-related investigations, the DOJ issued

8 a report stating that the Department would update the Media Guidelines. Department of Justice,

9 Report

on

Review

of

News

Media

Policies,

July

2013,

10 http://www.justice.gov/iso/opa/resources/2202013712162851796893.pdf.

11

30. In a statement to the New York Times, a DOJ spokesman said that although the

12 updated Media Guidelines would not include procedures for issuing NSLs to obtain information

13 about members of the media, the FBI’s issuance of NSLs is subject to an “extensive oversight

14 regime.” Charlie Savage, Holder Tightens Rules on Getting Reporters’ Data, N.Y. TIMES, July 12,

15 2013, at A1, http://nyti.ms/1SLxxbJ.

16

31. The DOJ published a final rule updating the Media Guidelines in the Federal

17 Register on February 27, 2014. The rule did not address the FBI’s procedures for issuing NSLs or

18 exigent letters to obtain information about members of the press. Policy Regarding Obtaining

19 Information From, or Records of Members of the News Media; and Regarding Questioning,

20 Arresting or Charging Members of the News Media, 79 Fed. Reg. 10989-01 (Feb. 27, 2014)

21 (amending 28 C.F.R. § 50.10).

22

32. In January 2015, several months after the OIG’s 2014 Report confirmed that the FBI

23 had new procedures for gathering information about the media, the DOJ published another final

24 rule in the Federal Register amending the Media Guidelines. Again, the updated policy included

25 no procedures for issuing NSLs or exigent letters to obtain information about members of the press.

26 Updated Policy Regarding Obtaining Information From, or Records of Members of the News

27 Media; and Regarding Questioning, Arresting or Charging Members of the News Media, 80 Fed.

28

-8-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 9 of 11

1 Reg. 2819-01 (Jan. 21, 2015) (amending 28 C.F.R. § 50.10).

2

Plaintiff’s FOIA Request

and Request for Expedited Processing 3

33. In a letter to the FBI dated March 10, 2015, FPF requested under the FOIA all

4

records from January 2009 to the present concerning:

5

6

(A) the extensive regime, rules, guidelines, or infrastructure that oversees the issuance of NSLs or exigent letters to obtain records regarding a member

7

of the media;

8

(B) the current procedures that FBI agents must undertake in advance of

issuing a NSL or exigent letter to obtain records regarding any member

9

of the media, including any pre-approval process;

10 (C) the current procedures that FBI agents must undertake after issuing a

11

NSL or exigent letter to obtain records regarding any member of the

media, including any mandatory subsequent reporting process; and

12

(D) any changes in FBI policy, procedure, or practice after the issuance of the

13

U.S. Department of Justice, Report on Review of News Media Policies

14

(2013) and U.S. Department of Justice, Updated Policy Regarding

Obtaining Information From, or Records of, Members of the News

15

Media; and Regarding Questioning, Arresting, or Charging Member of

the News Media (2015).

16

34. FPF asked that the processing of the request be expedited because disclosure of the

17

requested documents is in the public interest and “[a] matter of widespread and exceptional media

18

interest in which there exist[s] possible questions about the government’s integrity which affect

19

public confidence.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 28 C.F.R. § 16.5(d)(1)(iv).

20

35. By letter dated March 20, 2015, the FBI acknowledged receipt of FPF’s FOIA

21

request and informed FPF that its request for expedited processing had been granted.

22

36. To date, the FBI has not made a final determination on FPF’s request.

23

37. By letter to OIP dated May 18, 2015, FPF appealed the FBI’s constructive denial of

24

the request.

25

38. By letter dated July 1, 2015, OIP acknowledged receipt of FPF’s appeal on June 2,

26

2015.

27

39. By letter dated July 15, 2015, OIP informed FPF that the request was being

28

-9-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 10 of 11

1 processed, but stated that no final determination had yet been made by the FBI.

2

40. In a telephone conversation on July 23, 2015, the FBI informed counsel for FPF that

3 the processing of the request would take approximately seven months to complete.

4

41. The DOJ has not only failed to expedite the processing of FPF’s request, but has

5 also exceeded the generally applicable 20-day deadline for the processing of any FOIA request.

6

42. FPF has exhausted all applicable administrative remedies.

7

43. The DOJ has wrongfully withheld the requested records from FPF.

8 CAUSE OF ACTION
9

10

Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records

11

44. Plaintiff repeats and realleges paragraphs 1-43.

12

45. The DOJ has wrongfully withheld agency records requested by Plaintiff by failing

13 to comply with the statutory time limit for the processing of Plaintiff’s FOIA request.

14

46. Plaintiff has exhausted the applicable administrative remedies with respect to the

15 FBI’s wrongful withholding of the requested records.

16

47. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

17 the requested documents.

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25 //

26 //

27 //

28

-10-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 3:15-cv-03503-HSG Document 1 Filed 07/30/15 Page 11 of 11

1

Requested Relief

2 WHEREFORE, Plaintiff prays that this Court:

3

A. Order Defendant DOJ to process immediately the requested records in their entirety;

4

B. Order Defendant DOJ, upon completion of such expedited processing, to disclose

5 the requested records in their entirety and make copies available to Plaintiff;

6

C. Provide for expeditious proceedings in this action;

7

D. Award Plaintiff its costs and reasonable attorneys fees incurred in this action; and

8

E. Grant such other relief as the Court may deem just and proper.

9

10

11 DATED: July 30, 2015 12 13 14 15 16 17 18

By /s/ Marcia Hofmann Marcia Hofmann Law Office of Marcia Hofmann 25 Taylor Street San Francisco, CA 94102 Telephone: (415) 830-6664
D. Victoria Baranetsky (pro hac vice pending) 601 Van Ness Ave. Suite E731 San Francisco, CA 94102 Telephone: (415) 767-5566
Attorneys for Plaintiff FREEDOM OF THE PRESS FOUNDATION

19

20

21

22

23

24

25

26

27

28

-11-
COMPLAINT FOR INJUNCTIVE RELIEF

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6 FREEDOM OF THE PRESS
7 FOUNDATION,

8

Plaintiff,

9

v.

10 UNITED STATES DEPARTMENT OF JUSTICE,
11 Defendant.
12

Case No. 15-cv-03503-HSG
ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 30, 37

United States District Court Northern District of California

13

Pending before the Court are the parties’ cross-motions for summary judgment. Dkt. Nos.

14 30, 37. For the reasons articulated below, the Court GRANTS Defendant’s motion for summary

15 judgment and DENIES Plaintiff’s cross-motion.

16

I. BACKGROUND

17

Plaintiff Freedom of the Press Foundation filed this action on July 30, 2015, seeking an

18 injunction to compel Defendant DOJ to disclose records requested under the Freedom of

19 Information Act (“FOIA”). Plaintiff submitted a FOIA request on March 10, 2015, seeking

20 records related to the Federal Bureau of Investigation’s (“FBI”) procedures for issuing national

21 security letters (“NSLs”) to obtain information regarding any member of the media from January

22 2009 to the present. Dkt. No. 1. The FBI is empowered to issue NSLs to obtain “subscriber

23 information and toll billing records information, or electronic communication transactional

24 records” from third-party wire or electronic communication providers if such information is

25 “relevant to an authorized investigation to protect against international terrorism or clandestine

26 intelligence activities.” 18 U.S.C. §§ 2709(a)–(b). Plaintiff, however, suspects government

27 misuse of this investigative tool.

28

In response to Plaintiff’s FOIA request, the FBI conducted a search of its records. See Dkt.

1 No. 30-1 (Hardy Decl.) ¶¶ 17–21 & Exs. H, I. It identified 302 pages of records and released 156,

2 withholding the rest pursuant to FOIA Exemptions 1, 3, 5, 7(C), and 7(E). Id. ¶ 15. Defendant

3 also consulted with another agency — the Office of the General Counsel (“OGC”) — regarding

4 responsive records, identifying another 134 pages of records and releasing 72, again withholding

5 the rest pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 16 & Exs. H, I. In total,

6 Defendant identified 436 pages of records responsive to Plaintiff’s FOIA request and released 228

7 documents (171 in part and 57 in full). See ¶¶ 5, 16 & Ex. H. The FBI detailed its search and the

8 nature of its withholdings in an affidavit in the form described in Vaughn v. Rosen, 484 F.2d 820

9 (D.C. Cir. 1973), generally known as a “Vaughn Index,” as well as two Declarations from David

10 M. Hardy (“Hardy Declarations”), the Section Chief of the Record/Information Dissemination

11 Section (“RIDS”) of the FBI’s Record Management Division. See Hardy Decl. Ex. I (Vaughn

United States District Court Northern District of California

12 Index); see also Dkt. No. 44-1 (Suppl. Hardy Decl.).

13 II. LEGAL STANDARD

14

A. Summary Judgment

15

Summary judgment is proper when a “movant shows that there is no genuine dispute as to

16 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

17 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson

18 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence

19 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id.

20 But in deciding if a dispute is genuine, the Court must view the inferences reasonably drawn from

21 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec.

22 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986), and “may not weigh the evidence

23 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

24

With respect to summary judgment procedure, the moving party always bears both the

25 ultimate burden of persuasion and the initial burden of producing those portions of the pleadings,

26 discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp.

27 v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will bear the burden of proof on an

28 issue at trial, it must show that no reasonable trier of fact could not find in its favor. Celotex, 477 2

1 U.S. at 325. “If a moving party fails to carry its initial burden of production, the nonmoving party

2 has no obligation to produce anything, even if the nonmoving party would have the ultimate

3 burden of persuasion at trial.” Id. at 1102–03.

4

“If, however, a moving party carries its burden of production, the nonmoving party must

5 produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party

6 “must do more than simply show that there is some metaphysical doubt as to the material facts.”

7 Matsushita Elec., 475 U.S. at 586. A nonmoving party must also “identify with reasonable

8 particularity the evidence that precludes summary judgment,” because the duty of the Court is not

9 to “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275,

10 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its claim or

11 defense, courts must enter summary judgment in favor of the movant. Celotex, 477 U.S. at 323.

United States District Court Northern District of California

12

B. FOIA

13

FOIA, 5 U.S.C. § 552, “was enacted to facilitate public access to Government documents.”

14 Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (internal quotations omitted).

15 The goal of FOIA is to “ensure an informed citizenry, vital to the functioning of a democratic

16 society, needed to check against corruption and to hold the governors accountable to the

17 governed.” Id. (quotation omitted). At the same time, FOIA contemplates that the government

18 may have legitimate reasons for withholding some information from the public. Id. Accordingly,

19 FOIA “requires federal agencies to make Government records available to the public, subject to

20 nine exemptions for specific categories of material.” Milner v. Dep’t of Navy, 562 U.S. 562, 564

21 (2011). These nine FOIA exemptions are “explicitly made exclusive and must be narrowly

22 construed.” Id. at 565 (quotation omitted).

23

FOIA cases are typically decided on motions for summary judgment because the facts are

24 rarely in dispute. See Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996).

25 Upon a motion for summary judgment, a district court analyzes the withholding of documents de

26 novo. 5 U.S.C. § 552(a)(4)(B). FOIA permits a district court to enjoin a defendant agency from

27 withholding agency records or to order a defendant agency to produce any improperly withheld

28 records. Id. 3

1

A defendant agency “must show that its search for responsive records was adequate, that

2 any claimed exemptions actually apply, and that any reasonably segregable, non-exempt parts of

3 records have been disclosed after redaction of exempt information.” Light v. Dep’t of Justice, 968

4 F. Supp. 2d 11, 23 (D.D.C. 2013); accord Lahr, 569 F.3d at 973; Pac. Fisheries, Inc. v. United

5 States, 539 F.3d 1143, 1148 (9th Cir. 2008). The agency bears the burden to show that it has

6 complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B).

7 III. DISCUSSION

8

Defendant asserts that it is entitled to summary judgment on Plaintiff’s FOIA claim

9 because the FBI, a component of the DOJ, has fully complied with its obligations under FOIA.

10 Dkt. No. 30 at 1 (“Gov’t MSJ”). Specifically, Defendant contends that the FBI (1) conducted a

11 reasonable search in response to Plaintiff’s FOIA request; (2) properly withheld documents 12 pursuant to FOIA exemptions 1, 3, 5, and 7E;1 and (3) disclosed all reasonably segregable

United States District Court Northern District of California

13 information that is not covered by a FOIA exemption. Id. at 1–2. Plaintiff opposes Defendant’s

14 motion for summary judgment and instead seeks judgment that (1) Defendant has failed to

15 conduct an adequate search for responsive documents; (2) Defendant’s Vaughn Index fails to meet

16 Defendant’s burden under FOIA; (3) Defendant has failed to show that it properly withheld

17 documents pursuant to FOIA exemptions 1, 3, 5, and 7E; and (4) Defendant has failed to disclose

18 all reasonably segregable information that is not covered by a FOIA exemption. Dkt. No. 37

19 (“FPF MSJ”).

20

C. The FBI Has Conducted an Adequate Search for Responsive Records

21

FOIA requires a defendant agency to “demonstrate that it has conducted a search

22 reasonably calculated to uncover all relevant documents.” Lahr, 569 F.3d at 986. An agency may

23 make such a showing by “reasonably detailed, nonconclusory affidavits submitted in good faith.”

24 Id.; Citizens Comm’n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir.

25 1995). Because of courts’ “limited institutional expertise on intelligence matters” and the risk of

26

27 1 The FBI also redacted material under FOIA exemptions 6 and 7(C) and withheld duplicate

28

documents. Gov’t MSJ at 2 n.1. Plaintiff does not challenge those withholdings. Id.; see generally FPF MSJ.

4

1 adversaries aggregating even “small pieces” of intelligence data, “[a]ffidavits submitted by an

2 agency to demonstrate the adequacy of its response are presumed to be in good faith” when

3 submitted in the national security context. Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 770

4 (9th Cir. 2015).

5

“In evaluating the sufficiency of an agency’s search, the issue to be resolved is not whether

6 there might exist any other documents possibly responsive to the request, but rather whether the

7 search for those documents was adequate.” Lahr, 569 F.3d at 987 (quotation omitted). A district

8 court assesses the adequacy of an agency’s search against a standard of reasonableness, construing

9 all facts in the light most favorable to the FOIA requestor. Citizens Comm’n, 45 F.3d at 1328.

10 Summary judgment is inappropriate “if a review of the record raises substantial doubt, particularly

11 in view of well-defined requests and positive indications of overlooked materials . . . .” Hamdan,

United States District Court Northern District of California

12 797 F.3d at 771 (quotation omitted). Nevertheless, the Ninth Circuit has made clear that a search

13 is not inadequate for failing to turn up a single document or even several documents. Id.; Lahr, at

14 987 (“[T]he failure to produce or identify a few isolated documents cannot by itself prove the

15 searches inadequate.”). Similarly, “[s]peculative claims about the existence of additional

16 documents are insufficient to rebut the presumption of good faith . . . .” Coleman v. Drug Enf’t

17 Admin., 134 F. Supp. 3d 294, 301 (D.D.C. 2015); accord Lahr, 569 F.3d at 987–88.

18

The Court finds the Hardy Declarations establish that the FBI conducted an adequate

19 search that was reasonably calculated to uncover all relevant documents. According to Hardy,

20 while the FBI typically searches its Central Records System (“CRS”) database in response to

21 FOIA requests, Plaintiff’s request did not lend itself to a CRS index search. Hardy Decl. ¶ 17.

22 The CRS index is organized by individuals, organizations, companies, and events, but Plaintiff’s

23 request was for more generalized information about NSLs and agency policy. Accordingly, the

24 FBI conducted a more targeted search of the FBI divisions and offices reasonably likely to possess

25 responsive information about the procedures governing and oversight of NSLs used to obtain

26 records for members of the media. Id. ¶¶ 18, 19. RIDS requested records that were created on or

27 before August 10, 2015. Id. Specifically, the FBI’s Discovery Processing Unit (“DPU”)

28 determined that the OGC was reasonably likely to have, or at least know where to locate, 5

1 responsive records. Id. ¶ 20. DPU contacted all three OGC branches — the National Security

2 Law Branch, the Litigation Branch, and the Investigative and General Law Branch — to search for

3 responsive documents. Id. Further, RIDS reviewed an unclassified version of the Domestic

4 Investigations and Operations Guide (“DIOG”), which contains substantially all of the FBI’s

5 procedures, techniques, and strategies for conducting investigations. Id. ¶ 21; Suppl. Hardy Decl.

6 ¶ 7. Through this process, RIDS identified Section 18 — entitled “National Security Letter” — as

7 potentially responsive. Hardy Decl. ¶ 21.

8

Plaintiff maintains that the FBI failed to perform an adequate search for two reasons:

9 (1) although the FBI represents that it reviewed the DIOG, the FBI failed to identify Appendix G,

10 which falls within Plaintiff’s FOIA request because it specifies the procedures for issuing NSLs to

11 obtain telephone records of media members; and (2) the FBI primarily identified records from

United States District Court Northern District of California

12 2014 and 2015, which Plaintiff finds “surprising” given that the FBI updated the DIOG in 2011.

13 FPF MSJ at 13–14. Plaintiff asserts that these “conspicuous omissions” establish that the FBI did

14 not perform a search reasonably calculated to uncover all responsive documents. Id. at 14. The

15 Court is not persuaded.

16

The Supplemental Hardy Declaration explains that the FBI did not identify Appendix G

17 because it was not included in the unclassified version of the DIOG that RIDS reviewed. Suppl.

18 Hardy Decl. ¶ 7 & n.4. Even if the Court agreed with Plaintiff that Defendant should have

19 otherwise identified Appendix G, that omission, standing alone, is insufficient to render the FBI’s

20 search inadequate. See id. at 771 (concluding that the Ninth Circuit has made clear that a search is

21 not inadequate for failure to turn up a single document).

22

Similarly, the Hardy Declaration adequately establishes that the FBI searched for

23 documents for the entire period between January 2009 and March 10, 2015. Hardy attests that the

24 FBI’s search actually encompassed a significantly broader time period, directing all OGC

25 branches to locate records created on or before August 10, 2015. Hardy Decl. ¶ 19; see also

26 Suppl. Hardy Decl. ¶ 7. Plaintiff’s “[s]peculative claims about the existence of additional

27 documents are insufficient to rebut the presumption of good faith” to which Hardy’s declarations

28 are entitled. See Coleman, 134 F. Supp. 3d at 301. 6

1

Because Plaintiff’s speculation cannot overcome the FBI’s reasonably detailed, non-

2 conclusory declarations, the Court holds that the FBI has conducted an adequate search for

3 responsive records. While the FBI’s search may not have been perfect, Plaintiff was “entitled to a

4 reasonable search for records, not a perfect one.” Hamdan, 797 F.3d at 772.

5

D. FOIA Exemptions

6

Next, the Court must determine whether Defendant properly withheld records under the

7 asserted FOIA exemptions.

8

“FOIA’s strong presumption in favor of disclosure places the burden on the government to

9 show that an exemption properly applies to the records it seeks to withhold.” Hamdan, 797 F.3d

10 at 772. When a government agency seeks to withhold documents under FOIA exemptions, courts

11 have required the agency to “to supply the opposing party and the court with a Vaughn index,

United States District Court Northern District of California

12 identifying each document withheld, the statutory exemption claimed, and a particularized

13 explanation of how disclosure of the particular document would damage the interest protected by

14 the claimed exemption.” Wiener v. F.B.I., 943 F.2d 972, 977–78 (9th Cir. 1991). The purpose of

15 a Vaughn index and any accompanying affidavits is to “afford the FOIA requester a meaningful

16 opportunity to contest, and the district court an adequate foundation to review, the soundness of

17 the withholding,” and thus partially restore the adversary process to judicial review of the

18 agency’s decision. Id. “Specificity is the defining requirement of the Vaughn index.” Id. at 979.

19

“Where the government invokes FOIA exemptions in cases involving national security

20 issues, [courts] are required to accord substantial weight to the agency’s affidavits.” Hamdan, 797

21 F.3d at 769; Minier, 88 F.3d at 800. A court must be mindful of its “limited institutional expertise

22 on intelligence matters, as compared with the executive branch.” Hamdan, 797 F.3d at 770.

23 However, the affidavits still “must describe the justifications for nondisclosure with reasonably

24 specific detail, demonstrate that the information withheld logically falls within the claimed

25 exemptions, and show that the justifications are not controverted by contrary evidence in the

26 record or by evidence of agency bad faith.” Id. at 769. “[A]n agency’s justification for invoking a

27 FOIA exemption is sufficient if it appears logical or plausible.” Id. at 774. “If the affidavits

28 contain reasonably detailed descriptions of the documents and allege facts sufficient to establish 7

1 an exemption, the district court need look no further.” Lane v. Dep’t of Interior, 523 F.3d 1128,

2 1135–36 (9th Cir. 2008).

3

Here, Defendant withheld information from several categories of documents: (1) a Policy

4 Implementation Guide, with instructions for managing and conducting cyber investigations;

5 (2) the DIOG; (3) Media Guidelines, with instructions for investigating and charging members of

6 the news media; (4) a NSL PowerPoint training presentation; (5) internal emails regarding the

7 creation and revision of the Policy Implementation Guide, DIOG, and Media Guidelines; and (6)

8 Office of Information Policy (“OIP”) drafts of the Media Guidelines. Hardy Decl. ¶¶ 23–31.

United States District Court Northern District of California

9

i. Exemption 1 - Classified Information

10 Defendant withheld seven pages in full from the DIOG pursuant to Exemption 1 as
11 containing intelligence activities and methods. Hardy Decl. ¶¶ 40–44. Exemption 1 exempts from
12 disclosure records that are “specifically authorized under criteria established by an Executive order
13 to be kept secret in the interest of national defense or foreign policy . . . .” 5 U.S.C. § 552(b)(1).
14 Executive Order 13526 permits an agency to classify information as national security information
15 if:
16

17

(1) an original classification authority is classifying the information; 18

(2) the information is owned by, produced by or for, or is under the

19

control of the United States Government;

20

(3) the information falls within one or more of the categories of

information listed in section 1.4 of [Executive Order 13526];

21

and

22

(4) the original classification authority determines that the

unauthorized disclosures of the information reasonably could be

23

expected to result in damage to the national security, which

includes defense against transnational terrorism, and the original

24

classification authority is able to identify or describe the

damage. 25

26 Exec. Order 13526 § 1.1(a) (emphasis added). Executive Order 13526 § 1.4(c), in turn, allows

27 classification of “intelligence activities (including covert action), intelligence sources or methods,

28 or cryptology.” 8

1

Plaintiff asserts that Defendant has failed to meet its burden to show that these pages

2 constitute intelligence sources or methods or that disclosure of the withheld documents would

3 reveal intelligence sources or methods. FPF MSJ at 15–19. Specifically, Plaintiff contends that

4 the Hardy Declaration and Vaughn Index do “little more than recite the applicable exemption” and

5 thus “fall short” of providing a particularized justification as required under FOIA. Id. at 16–17.

6

The Court finds that the FBI has carried its burden to demonstrate that it properly classified

7 the seven withheld pages under Exemption 1. The Hardy Declaration first explains the procedural

8 and substantive requirements with which Hardy complied in order to properly withhold

9 information under Exemption 1. Hardy Decl. ¶¶ 34–40. Next, in addition to describing the

10 general justifications for shielding intelligence sources and methods from public disclosure, the

11 Declaration explains the specific rationale for withholding the relevant seven pages. Id. ¶¶ 41–44.

United States District Court Northern District of California

12 Hardy attests that the withheld pages detail intelligence activities or methods that are still used by

13 the FBI today to gather information. Id. ¶ 42. Hardy further elaborates that the withheld

14 intelligence activities or methods contain information gathered by the FBI on a specific type of

15 individual or organization of national security interest. Id. ¶ 44. Examined in context, Hardy

16 determined that the withheld information could reasonably be expected to cause serious damage to

17 national security as it would, for example, reveal the breadth of the FBI’s intelligence on a specific

18 target. Id. ¶ 45–46. He consequently exercised his original classification authority to designate

19 the information under Exemption 1. Id.

20

The Hardy Declaration provides sufficient detail regarding the withheld information to

21 make the Exemption 1 classification plausible. See Hamdan, 797 F.3d at 770. Moreover, the

22 Declaration does not contain conditional language or attempt to categorize multiple distinct

23 documents under a single, general justification. Recognizing the Court’s “limited institutional

24 expertise on intelligence matters,” the Court accords substantial weight to Hardy’s representation

25 that “any greater specificity in the descriptions and justifications . . . could reasonably be expected

26 to jeopardize the national security of the United States.” Hardy Decl. ¶ 46. In the area of national

27 security, “it is conceivable that the mere explanation of why information must be withheld can

28 convey valuable information to a foreign intelligence agency.” See Hamdan, 797 F.3d at 775. 9

1

Accordingly, the Court finds that Defendant properly withheld information under

2 Exemption 1.

3

ii. Exemption 3 — Information Protected by Statute

4

Defendant asserts that the same seven DIOG pages withheld in full under Exemption 1 are

5 also properly withheld under Exemption 3. Compare Hardy Decl. ¶ 44 with ¶ 47. The Court

6 agrees.

7

Exemption 3 protects information “specifically exempted from disclosure by statute . . . if

8 that statute (A)(i) requires that the matters be withheld from the public in such a manner as to

9 leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refer to

10 particular types of matters to be withheld; and (B) if enacted after the date of enactment of the

11 OPEN FOIA Act of 2009, specifically cites to the paragraph.” 5 U.S.C. § 552(b)(3); Berman v.

United States District Court Northern District of California

12 C.I.A., 501 F.3d 1136, 1140 (9th Cir. 2007). In determining whether information has been

13 properly withheld under Exemption 3, the Court asks “whether the statute identified by the agency

14 is a statute of exemption within the meaning of Exemption 3” and “whether the withheld records

15 satisfy the criteria of the exemption statute.” Hamdan, 797 F.3d at 776.

16

According to Defendant, the FBI is required to “protect from unauthorized disclosure

17 intelligence sources and methods” pursuant to Section 102A(i)(1) of the National Security Act of

18 1947. Id. ¶¶ 49–50. Section 102A(i)(1) requires the Director of National Intelligence to “protect

19 from unauthorized disclosure intelligence sources and methods.” Plaintiff does not appear to

20 contest that Section 102A(i)(1) is a statute of exemption within the meaning of Exemption 3, see

21 FPF MSJ at 15–19, and the Court finds that it is. See Berman, 501 F.3d at 1140.

22

The Court is similarly satisfied that the withheld records would disclose intelligence

23 sources and methods. Although, as Defendant acknowledges, the initial Hardy Declaration

24 regarding Exemption 3 contains circular reasoning, the detail provided under Exemption 1

25 demonstrates that the FBI also properly withheld portions of the DIOG under Exemption 3. Hardy

26 states that the withheld pages detail intelligence activities or methods that are still used by the FBI

27 today and that the relevant pages contain information gathered by the FBI on a specific type of

28 individual or organization of national security interest. Hardy Decl. ¶¶ 42, 44. 10

1

Plaintiff vigorously asserts that Wiener, 943 F.2d at 977–78, requires more detail than

2 Defendant provided here. FPF MSJ at 15–17. However, the Ninth Circuit has recently rejected

3 that precise argument in a national security context like this one. See Hamdan, 797 F.3d at 775

4 (“It is reasonable to say that the government can explain its reasons for withholding the records at

5 issue in Wiener, relating to the government’s investigation of John Lennon twenty years earlier,

6 with more detail than the records at issue here, in a case that relates to current intelligence and law

7 enforcement activity of the government, including sensitive issues that may involve possible

8 cooperation with foreign governments.”). As such, the Court accords “substantial weight” to the

9 FBI’s declarations, see Hamdan, 797 F.3d at 769, and finds that Defendant has properly withheld

10 documents under Exemption 3.

11

iii. Exemption 5 — Privileged Information

12

Defendant purports to withhold portions of five categories of documents under Exemption

United States District Court Northern District of California

13 5: (1) Policy Implementation Guide; (2) DIOG; (3) NSL PowerPoint training presentation; and

14 (4) internal emails regarding the creation and revision of the Policy Implementation Guide, DIOG,

15 and Media Guidelines; and (5) OIP’s drafts of the Media Guidelines.

16

Exemption 5 shields disclosure of “interagency or intra-agency memorandums or letters

17 which would not be available by law to a party other than an agency in litigation with the agency.”

18 5 U.S.C. § 552(b)(5). Information withheld under Exemption 5 must “satisfy two conditions: its

19 source must be a Government agency, and it must fall within the ambit of a privilege against

20 discovery under judicial standards that would govern litigation against the agency that holds it.”

21 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). Specifically,

22 Exemption 5 covers the attorney-client privilege and the deliberative process privilege. Maricopa

23 Audubon Soc. v. U.S. Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997). It is to be “applied as

24 narrowly as consistent with efficient Government operation.” Lahr, 569 F.3d at 979.

25

Plaintiff argues that Defendant “has failed to provide sufficient information to determine if

26 the [deliberative process or attorney-client] privilege applies” to the withheld information. FPF

27 MSJ at 19.

28 11

a. Deliberative Process Privilege 1

2

The deliberative process privilege “shields certain intra-agency communications from

3 disclosure to allow agencies freely to explore possibilities, engage in internal debates, or play

4 devil’s advocate without fear of public scrutiny.” Lahr, 569 F.3d at 979. To qualify under the

5 deliberative process privilege, information must be both “predecisional” and “deliberative.” Id.

6

A document is “predecisional” if it is “prepared in order to assist an agency decisionmaker

7 in arriving at his decision . . . .” Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir.

8 2002). This “may include recommendations, draft documents, proposals, suggestions, and other

9 subjective documents which reflect the personal opinions of the writer rather than the policy of the

10 agency.” Id. (quotation omitted); see also Lahr, 569 F.3d at 979–80. This contrasts with

11 “postdecisional” documents such as “communications made after [a] decision [that are] designed

United States District Court Northern District of California

12 to explain it . . . .” N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 152 (1975).

13

A document is “deliberative” if it is “actually . . . related to the process by which policies

14 are formulated.” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1118–19 (9th Cir.

15 1988) (quotation omitted). “[T]he key question . . . [is] whether the disclosure of materials would

16 expose an agency’s decision-making process in such a way as to discourage candid discussion

17 within the agency and thereby undermine the agency’s ability to perform its functions.” Assembly

18 of State of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 921 (9th Cir. 1992), as amended on

19 denial of reh’g (Sept. 17, 1992).

20

Defendant withheld information under the deliberative process privilege in four categories

21 of documents: (1) Policy Implementation Guide; (2) DIOG; (3) internal emails; and (4) Media

22 Guidelines. Plaintiff does not dispute that all the withheld documents are either non-final drafts or

23 contain employee comments and recommendations on specific FBI policies. As such, Plaintiff

24 does not appear to dispute that such documents were “predecisional.” Regardless, the Hardy

25 Declaration specifically notes that these documents were sent “between personnel responsible for

26 making policy decisions” and that the withheld documents “contain predecisional policy

27 recommendations.” Suppl. Hardy Decl. ¶ 9. This is not mere ipse dixit. The Hardy Declarations

28 and Vaughn Index provide sufficient detail about the policies and decisions at issue in each 12

1 withheld category. In each, the FBI was evaluating its policies for conducting cyber

2 investigations, including investigations into members of the news media and the use of NSLs.

3

The withheld Policy Implementation Guide was a draft in which “FBI employees were

4 engaged in deliberate comments in order to help formulate the FBI’s policies concerning how to

5 conduct cyber investigations.” Vaughn Index at 1. The withheld pages of the DIOG included

6 draft operational directives about the use of NSLs. Id. at 2; see also Hardy Decl. ¶ 26. The

7 withheld emails included exchanges between personnel from the FBI’s Office of General Counsel

8 about revising the Media Guidelines, including discussions of the legal implications of certain

9 interpretations and applications of the guidelines. Id. at 5–6. And the withheld Media Guidelines

10 were a red-lined draft with “comments, suggestions and proposed updates in the margin of the

11 documents.” Hardy Decl. ¶ 31. As such, these documents are both predecisional and deliberative,

United States District Court Northern District of California

12 and thus fall squarely within the deliberative process privilege. Carter, 307 F.3d at 1089.

13

Plaintiff suggests that more detail is needed about the character of the decisions being

14 made and how these documents influenced those decisions. See FPF MSJ at 20. Yet Defendant

15 has already explained the nature of the withheld information. It need not disclose the specific

16 comments or how the final policies ultimately changed in light of such feedback because that

17 would create an end-run around the exemption. See Mobil Oil Corp. v. U.S. E.P.A., 879 F.2d 698,

18 703 (9th Cir. 1989) (“[T]here is no merit to [the] argument that in order to establish the privileged

19 character of a draft, [an agency] must show to what extent the draft differs from the final

20 document. The effect of this would be to expose what occurred in the deliberative process

21 between the draft’s creation and the final document’s issuance.” (quotation omitted)). Plaintiff’s

22 reliance on United States v. Rozet, 183 F.R.D. 662, 666 (N.D. Cal. 1998), to argue otherwise is

23 unavailing. That case merely stands for the proposition that even informal documents should be

24 produced if they reflect an agency’s existing guidelines or current understanding of its own 25 policies.2

26

27

2 Plaintiff points to four pages from a partially redacted email thread from February 2015 that it suggests are not deliberative since they contain solicitations from an FBI employee to OGC

28

seeking advice on agency procedure. FPF MSJ at 22. But Defendant stated that these pages were also withheld as exempt under the attorney-client privilege. Vaughn Index at 5. The Court

13

1

Plaintiff next suggests that Exemption 5 cannot be invoked “where there is reason to

2 believe the documents sought may shed light on government misconduct” because “shielding

3 internal government deliberations in this context does not serve the public’s interest in honest,

4 effective government.” In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997). Plaintiff’s

5 argument cannot be reconciled with the Ninth Circuit’s opinion in Hamdan, which emphasized the

6 deference given to government affidavits in cases involving national security issues. 797 F.3d at

7 769. The Court highlighted that “government misconduct is easy to allege and hard to disprove,

8 so courts must insist on a meaningful evidentiary showing.” Id. (citing Nat’l Archives & Records

9 Admin. v. Favish, 541 U.S. 157, 175 (2004)) (internal quotation marks omitted). It was not

10 enough in Hamdan for the plaintiffs to “pepper[] their briefs with allegations of FBI involvement

11 in Hamdan’s abduction and torture by Emirati authorities, and suggestions that the agencies’

United States District Court Northern District of California

12 withholdings . . . are calculated to cover up proxy detention practices that allegedly would allow

13 suspects to be detained and tortured by foreign governments.” Id. at 772–73. So too here.

14 Moreover, general allegations of misconduct are insufficient to overcome the deliberative process

15 privilege because “disproving the general, substantive allegations of misconduct is not the

16 government’s obligation in FOIA litigation.” Lahr, 569 F.3d at 980. Plaintiff does not point to

17 any specific, contemporaneous misconduct that may warrant disclosure, nor does it provide any

18 evidence of such misconduct.

19

b. Attorney-Client Privilege

20

“The attorney-client privilege protects confidential communications between attorneys and

21 clients, which are made for the purpose of giving legal advice.” United States v. Richey, 632 F.3d

22 559, 566 (9th Cir. 2011). To claim the privilege, a party must show: (1) a communication;

23 (2) between privileged persons; (3) made in confidence; (4) to solicit or provide legal advice. See

24 United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002), as amended on denial of reh’g (Mar.

25 13, 2002).

26

Defendant withheld information under the attorney-client privilege for two categories of

27

28 discusses this exemption below in Section III.D.iii.a. 14

1 documents: (1) NSL PowerPoint training presentation and (2) internal emails. Hardy Decl.

2 ¶¶ 53–54; Suppl. Hardy Decl. ¶¶ 11–12. The PowerPoint presentation was created to train

3 employees on the issuance of NSLs. Hardy Decl. ¶ 28; Suppl. Hardy Decl. ¶ 12. Defendant

4 withheld portions of the PowerPoint presentation that contained legal advice from the OGC to FBI

5 employees on the use of NSLs as an investigative technique. Suppl. Hardy Decl. ¶¶ 11–12. The

6 PowerPoint presentation was, at least in part, the method by which OGC provided FBI employees

7 with legal advice. Id. ¶ 12. The withheld portions described legal issues and scenarios involving

8 the use of NSLs. Id. The withheld emails similarly conveyed legal advice from OGC to FBI

9 employees about the use of NSLs. Id. Any public information contained in the emails was

10 intertwined with the attorneys’ legal advice in light of specific and general scenarios. Id. The

11 information was not otherwise disclosed outside the agency. Id.

United States District Court Northern District of California

12

Plaintiff argues that Defendant failed to describe in sufficient detail the nature of the

13 withheld legal advice and to whom this legal advice was disseminated. Plaintiff further suggests

14 that because the documents were not all marked “confidential” Defendant cannot claim the

15 privilege.

16

The Court disagrees and finds that Defendant has provided sufficient detail to demonstrate

17 that the privilege applies to the withheld documents. Defendant explained that the withheld

18 information involved advice solicited from or given by the OGC to FBI employees regarding the

19 issuance of NSLs and their use as an investigative technique. See, e.g., Suppl. Hardy Decl. ¶¶ 11–

20 12. The Vaughn Index similarly provides a reasonable description of the legal issue in question.

21 Vaughn Index at 3–5, 7. The PowerPoint presentation in particular was a training tool for

22 employees on the use of NSLs. Suppl. Hardy Decl. ¶ 12. That some of the documents were not

23 marked confidential is simply inapposite. See In re Sealed Case, 737 F.2d 94, 102 (D.C. Cir.

24 1984) (“[A]n express request for confidentiality is not required.”). These documents were

25 maintained internally and Plaintiff has not pointed to circumstances that would suggest Defendant

26 otherwise waived the privilege.

27

28 15

iv. Exemption 7(E) — Investigative Techniques and Strategies 1

2

Exemption 7(E) protects from disclosure law enforcement records that would reveal

3 “techniques and procedures for law enforcement investigations or prosecutions, or would disclose

4 guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably

5 be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E); see also Hamdan, 797

6 F.3d at 778 (rejecting argument that government must prove that disclosing its “techniques and

7 procedures” would risk circumvention of the law). Because the FBI has a clear law enforcement

8 mandate, it “need only establish a ‘rational nexus’ between enforcement of a federal law and the

9 document for which [a law enforcement] exemption is claimed.” Rosenfeld v. U.S. Dep’t of

10 Justice, 57 F.3d 803, 808 (9th Cir. 1995) (quotation omitted).

11

Defendant withheld information from five categories of documents under Exemption 7(E):

United States District Court Northern District of California

12 (1) Policy Implementation Guide; (2) DIOG; (3) Media Guidelines; (4) NSL PowerPoint training

13 presentation; and (5) internal emails regarding the creation and revision of the Policy

14 Implementation Guide, DIOG, and Media Guidelines.

15

Plaintiff’s challenge to Defendant’s use of Exemption 7(E) is narrow. First, Plaintiff

16 argues that Defendant improperly withheld information because Defendant failed to provide an

17 adequate explanation of what was withheld and how disclosure would risk circumvention of the

18 law. Second, Plaintiff argues exemption was improper because the use of NSLs is already

19 publicly known.

20

Here too, however, the Court finds Defendant has met its burden and properly withheld

21 documents under Exemption 7(E) for all five categories of documents. Defendant described with

22 particularity that the withheld documents all contained non-public information about the FBI’s

23 investigative techniques and procedures. These pages not only identified NSLs as an investigative

24 technique, but also described information such as the circumstances under which the techniques

25 should be used, how to analyze the information gathered through these techniques, and the current

26 focus of the FBI’s investigations. See, e.g., Hardy Decl. ¶¶ 66–67; Suppl. Hardy Decl. ¶¶16–17.

27 As in Hamdan, the Court concludes that the declarations, which state that further detail would

28 “reveal[] the very information it seeks to protect,” Suppl. Hardy Decl. ¶ 13, are sufficient to satisfy 16

1 Defendant’s burden. Hamdan, 797 F.3d at 778; accord Lewis-Bey v. U.S. Dep’t of Justice, 595 F.

2 Supp. 2d 120, 138 (D.D.C. 2009) (upholding government’s withholding of “the circumstances

3 under which [electronic surveillance] techniques were used, the specific timing of their use, and

4 the specific location where they were employed.”).

5

Plaintiff misreads the statute in demanding an explanation for how disclosure of these

6 techniques would harm the FBI’s interests. The Ninth Circuit rejected this very argument in

7 Hamdan, finding it “an unpersuasive reading of the statutory text and structure.” Hamdan, 797

8 F.3d at 778. Even so, Defendant provided over twelve pages of additional explanation in the

9 Supplemental Hardy Declaration. See Suppl. Hardy Decl. at 9–21. Defendant explains, for

10 example, that “[a]ccess to such detailed information would greatly increase the risk that potential

11 lawbreakers would be able to evade detection and/or be emboldened to engage in criminal

United States District Court Northern District of California

12 activities” as they could “improve the ability of such individuals to take countermeasures to

13 circumvent the effectiveness of the techniques and to continue to violate the law and engage in

14 intelligence, terrorist, and criminal activities.” Id. ¶¶ 16–18, 20. Withholding information about

15 the logistics of where and to whom information is reported is similarly essential to prevent

16 individuals from “seek[ing] to sway, infiltrate, or otherwise undermine the FBI operations . . . .”

17 Id. ¶ 19.

18

v. Official Acknowledgment

19

Plaintiff argues that even if an exemption otherwise applies, five paragraphs of Section 18

20 and Appendix G of the DIOG have already been publicly released by the FBI in unclassified form

21 and thus that information cannot be withheld. FPF MSJ at 34. An official acknowledgment

22 requires that the information requested be as specific as the information previously released, match

23 the information previously disclosed, and already have been made public through an official and

24 documented disclosure. Pickard v. Dep’t of Justice, 653 F.3d 782, 786 (9th Cir. 2011) (quoting

25 Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). Plaintiff “bear[s] the initial burden of

26 pointing to specific information in the public domain that appears to duplicate that being

27 withheld.” Wolf v. CIA, 473 F.3d at 378. Here, although Plaintiff has pointed to an unclassified

28 version of Appendix G, it has missed the critical step of specifying how the material being 17

1 withheld “matches” any previously disclosed material. Without more specificity, the Court cannot

2 conclude that Defendant waived its ability to assert any FOIA exemptions.

3

vi. Segregability

4

FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to

5 any person requesting such record after deletion of the portions which are exempt under this

6 subsection.” 5 U.S.C. § 552(b). “The burden is on the agency to establish that all reasonably

7 segregable portions of a document have been segregated and disclosed.” Pac. Fisheries, Inc., 539

8 F.3d at 1148. Nevertheless, the agency is also “entitled to a presumption that [it] complied with

9 the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494

10 F.3d 1106, 1117 (D.C. Cir. 2007). Similarly, the Court “may rely on an agency’s declaration in

11 making its segregability determination. Agency affidavits that are sufficiently detailed are

United States District Court Northern District of California

12 presumed to be made in good faith and may be taken at face value.” Hamdan, 797 F.3d at 779.

13 The Court “need not conduct a page-by-page review of an agency’s work.” Id.

14

Although the segregability paragraph is boilerplate, the Court finds that Defendant has met

15 its burden through its tailored explanations of the withheld documents. Defendant conducted an

16 extensive review of the documents in question, including “a line by line review of the responsive

17 records.” Hardy Decl. ¶ 24. Defendant also provided a description as to why it withheld

18 particular documents — and even why it withheld particular pages — in whole or in part

19 following that review. Defendant similarly avers that it “has made every effort to provide plaintiff

20 with all material in the public domain and has taken all reasonable efforts to ensure that no

21 segregable, nonexempt portions were withheld from the plaintiff.” Id. Plaintiff’s only argument

22 in response is that the sheer volume of pages withheld under the deliberate process doctrine

23 “suggests that the FBI likely has failed to make an adequate effort to segregate non-exempt

24 material from exempt material, as FOIA requires.” FPF MSJ at 35. The question is not whether

25 Defendant withheld numerous pages, but rather whether they were properly withheld and

26 segregated. Plaintiff’s speculative suggestion is not enough to overcome the presumption of good

27 faith. Hamdan, 797 F.3d at 779.

28 18

vii. In Camera Review 1
The Court can review documents in camera to determine whether exemptions have been 2
properly asserted. 5 U.S.C. § 552(a)(4)(B). In camera inspection, however, should “not be 3
resorted to lightly,” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987), and is “disfavored” where 4
“the government sustains its burden of proof by way of its testimony or affidavits.” Lion Raisins 5
v. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004). “In camera inspection is particularly a 6
last resort in national security situations like this case — a court should not resort to it routinely on 7
the theory that it can’t hurt.” ACLU v. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011). The 8
Court finds that in camera review is unnecessary here as Defendant already provided sufficiently 9
detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn 10
Index. As discussed, Plaintiff has failed to overcome the good faith presumption to which they are 11
entitled. Hamdan, 797 F.3d at 770. 12

IV. CONCLUSION 13
For the foregoing reasons, the Court finds that Defendant is entitled to summary judgment
14 on Plaintiff’s FOIA claim. Accordingly, Defendant’s Motion for Summary Judgment is
15 GRANTED in its entirety, and Plaintiff’s Motion for Summary Judgment is DENIED. The clerk
16 is directed to enter judgment in favor of Defendant and close the file.
17 IT IS SO ORDERED.
18 Dated: 3/13/2017
19 ______________________________________

20

HAYWOOD S. GILLIAM, JR.

United States District Judge 21

United States District Court Northern District of California

22

23

24

25

26

27

28 19

 
 Case: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 1 of 6
ADRMOP,CLOSED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:15−cv−03503−HSG

Freedom of the Press Foundation v. United States Department of Date Filed: 07/30/2015

Justice

Date Terminated: 03/13/2017

Assigned to: Judge Haywood S Gilliam, Jr

Jury Demand: None

Cause: 05:552 Freedom of Information Act

Nature of Suit: 895 Freedom of

Information Act

Jurisdiction: U.S. Government Defendant

Plaintiff

Freedom of the Press Foundation

represented by Ahmed Ghappour 200 McAllister St San Francisco, CA 94602 415−505−5083 Email: ghappour@uchastings.edu ATTORNEY TO BE NOTICED

Diana Victoria Baranetsky The Center for Investigative Reporting 1400 65th Street Suite 200 Emeryville, CA 94608 510−809−3160 Fax: 510−849−6141 Email: vbaranetsky@revealnews.org TERMINATED: 05/18/2016 ATTORNEY TO BE NOTICED

Marcia Clare Hofmann Zeitgeist Law PC 25 Taylor Street San Francisco, CA 94102 415−830−6664 Email: marcia@marciahofmann.com ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice

represented by Andrew Marshall Bernie Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 United Sta 202−616−8488 Email: andrew.m.bernie@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neill Tai Tseng United States Attorney's Office 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 (415) 436−7155 Fax: (415) 436−6748 Email: neill.tseng@usdoj.gov TERMINATED: 02/08/2017 ATTORNEY TO BE NOTICED

Case: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 2 of 6

Amicus
Reporters Committee for Freedom of the Press

represented by Townsend KatieLynn Reporters Committee for Freedom of the Press 1156 15th St. NW Suite 1250 Washington, DC 20005 202.795.9300 Email: ktownsend@rcfp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/30/2015 07/30/2015 07/30/2015 07/30/2015
07/30/2015 07/30/2015 07/30/2015 07/31/2015 07/31/2015 07/31/2015 07/31/2015

# Docket Text
1 COMPLAINT against United States Department of Justice ( Filing fee $ 400, receipt number 0971−9719556.). Filed byFreedom of the Press Foundation. (Attachments: # 1 Civil Cover Sheet)(Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)
2 Proposed Summons. (Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)
3 Certificate of Interested Entities by Freedom of the Press Foundation (Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)
4 Case assigned to Hon. Haywood S Gilliam, Jr.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (bwS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)
5 Summons Issued as to United States Department of Justice (dtmS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)
6 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/27/2015. Case Management Conference set for 11/3/2015 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (dtmS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−9722378.) filed by Freedom of the Press Foundation. (Attachments: # 1 Supplement NY Certificate of Good Standing, # 2 Supplement NJ Certificate of Good Standing)(Baranetsky, Diana) (Filed on 7/30/2015) (Entered: 07/30/2015)
8 ORDER by Judge Haywood S. Gilliam, Jr. Granting 7 Motion for Pro Hac Vice. (ndrS, COURT STAFF) (Filed on 7/31/2015) (Entered: 07/31/2015)
9 CERTIFICATE OF SERVICE by Freedom of the Press Foundation (Hofmann, Marcia) (Filed on 7/31/2015) (Entered: 07/31/2015)
Electronic filing error. E−filer's Attestation Required. http://cand.uscourts.gov/ecf/signatures Re: 9 Certificate of Service filed by Freedom of the Press Foundation (dtmS, COURT STAFF) (Filed on 7/31/2015) (Entered: 07/31/2015)
10 CERTIFICATE OF SERVICE by Freedom of the Press Foundation re 5 Summons Issued as to USA, 6 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 8 Order on Motion for Pro Hac Vice, 1 Complaint (Baranetsky, Diana) (Filed on 7/31/2015) (Entered: 07/31/2015)

Case: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 3 of 6

09/02/2015 10/13/2015 10/13/2015 10/13/2015 10/13/2015 10/14/2015
10/22/2015
10/27/2015 10/29/2015 11/02/2015 11/03/2015

11 Defendant's ANSWER to Complaint for Injunctive Relief byUnited States Department of Justice. (Tseng, Neill) (Filed on 9/2/2015) (Entered: 09/02/2015)
12 NOTICE of Appearance by Andrew Marshall Bernie (Bernie, Andrew) (Filed on 10/13/2015) (Entered: 10/13/2015)
13 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Hofmann, Marcia) (Filed on 10/13/2015) (Entered: 10/13/2015)
14 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Hofmann, Marcia) (Filed on 10/13/2015) (Entered: 10/13/2015)
15 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Bernie, Andrew) (Filed on 10/13/2015) (Entered: 10/13/2015)
16 ADR Clerk's Notice Setting ADR Phone Conference on October 22, 2015 at 10:30 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 10/14/2015) (Entered: 10/14/2015)
ADR Remark: ADR Phone Conference held by Tamara Lange, ADR Program Staff Attorney, on 10/22/2015. A further ADR Phone Conference is scheduled on 1/20/2016 at 10:00 AM Pacific time. The call−in information remains the same. (af, COURT STAFF) (Filed on 10/22/2015) Modified on 10/22/2015 (af, COURT STAFF). (Entered: 10/22/2015)
17 CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Baranetsky, Diana) (Filed on 10/27/2015) (Entered: 10/27/2015)
18 Consent MOTION to Appear by Telephone at the November 3, 2015 Case Management Conference filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Bernie, Andrew) (Filed on 10/29/2015) (Entered: 10/29/2015)
19 ORDER by Judge Haywood S. Gilliam, Jr. Granting 18 Motion to Appear by Telephone at the November 3, 2015 Case Management Conference. (ndrS, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/02/2015)
20 Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Case Management Conference held on 11/3/2015. FTR Time 2:14−2:26 (12 Minutes). Plaintiff Attorney Marcia Hoffman; D. Victoria Baranetsky. Defendant Attorney Andrew Berbia appeaeing via CourtCall. Matter is continued to January 19, 2016 at 2:00 for further case management conference. Court not opposed to counsel for Defendant appearing via CourtCall at the next case management conference upon request.

(This is a text minute entry, there is no document associated with this entry.)

01/11/2016 01/11/2016
01/12/2016 01/19/2016

(ndrS, COURT STAFF) (Date Filed: 11/3/2015) (Entered: 11/04/2015)
21 Consent MOTION to Appear by Telephone at the January 19, 2016 Case Management Conference filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Bernie, Andrew) (Filed on 1/11/2016) (Entered: 01/11/2016)
22 ORDER by Judge Haywood S. Gilliam, Jr. Granting 21 Motion to Appear by Telephone at the January 19, 2016 Case Management Conference. Counsel shall contact CourtCall at (866) 582−6878 to make arrangements for the telephonic appearance. (ndrS, COURT STAFF) (Filed on 1/11/2016) (Entered: 01/11/2016)
23 CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Hofmann, Marcia) (Filed on 1/12/2016) (Entered: 01/12/2016)
24 Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Further Case Management Conference held on 1/19/2016 (16 minutes). FTR Time 2:02−2:18. Plaintiff Attorney Marcia Hoffman; D. Victoria Baranetsky. Defendant Attorney Andrew Bernie appearing via CourtCall. The parties are directed to meet and confer regarding briefing schedule and e−file a stipulation and proposed order by the end of the day on Friday, January 23, 2016. The Court sets March 21, 2016 as the deadline to exchange the Vaughn index. Parties are directed to follow through with their currently scheduled ADR call.

Case: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 4 of 6

01/20/2016 01/21/2016 01/21/2016 01/21/2016
01/28/2016 04/01/2016 04/11/2016
05/09/2016
05/17/2016 05/18/2016 06/01/2016 06/03/2016 06/03/2016 06/10/2016

(This is a text minute entry, there is no document associated with this entry.)
(ndrS, COURT STAFF) (Date Filed: 1/19/2016) (Entered: 01/20/2016)
ADR Remark: ADR Phone Conference held by TL on 1/20/2016. (af, COURT STAFF) (Filed on 1/20/2016) (Entered: 01/20/2016)
25 STIPULATION WITH PROPOSED ORDER Concerning Briefing Schedule filed by United States Department of Justice. (Bernie, Andrew) (Filed on 1/21/2016) (Entered: 01/21/2016)
26 ORDER by Judge Haywood S. Gilliam, Jr. Granting 25 Stipulation Concerning Briefing Schedule. (ndrS, COURT STAFF) (Filed on 1/21/2016) (Entered: 01/21/2016)
Set Deadlines/Hearings Pursuant to Docket No. 26 : Case Management Statement due by 4/1/2016; Motions due by 5/9/2016. Responses/Cross Motions due by 6/10/2016; Replies/Oppositions due by 7/1/2016; Replies due by 7/1/2016; Motion Hearing set for 8/11/2016 02:00 PM before Hon. Haywood S Gilliam Jr.. (ndrS, COURT STAFF) (Filed on 1/21/2016) (Entered: 01/21/2016)
27 NOTICE by Freedom of the Press Foundation of Change of Law Practice Name (Hofmann, Marcia) (Filed on 1/28/2016) (Entered: 01/28/2016)
28 CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Baranetsky, Diana) (Filed on 4/1/2016) (Entered: 04/01/2016)
29 ORDER directing Defendant to notice the motion for summary judgment due May 9, 2016, for hearing on August 18, 2016, at 2:00 pm in Courtroom 10, 19th Floor, San Francisco. Any cross−motion for summary judgment by Plaintiff should also be noticed for August 18, 2016. The motion hearing previously set for August 11, 2016, is vacated. (This is a text−only entry; there is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 4/11/2016) (Entered: 04/11/2016)
30 MOTION for Summary Judgment filed by United States Department of Justice. Motion Hearing set for 8/18/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 6/10/2016. Replies due by 7/1/2016. (Attachments: # 1 Declaration Declaration of David Hardy, # 2 Exhibit Exhibits to Declaration of David Hardy, # 3 Proposed Order)(Bernie, Andrew) (Filed on 5/9/2016) (Entered: 05/09/2016)
31 STIPULATION WITH PROPOSED ORDER Substituting Counsel filed by Freedom of the Press Foundation. (Ghappour, Ahmed) (Filed on 5/17/2016) (Entered: 05/17/2016)
32 ORDER by Judge Haywood S. Gilliam, Jr. Granting 31 STIPULATION OF SUBSTITUTION OF COUNSEL FOR PLAINTIFF FREEDOM OF THE PRESS FOUNDATION. (ndrS, COURT STAFF) (Filed on 5/18/2016) (Entered: 05/18/2016)
33 STIPULATION WITH PROPOSED ORDER to Exceed Page Limit filed by Freedom of the Press Foundation. (Hofmann, Marcia) (Filed on 6/1/2016) (Entered: 06/01/2016)
34 DISREGARD, INCORRECT DOCUMENT ATTACHED. SEE DOCKET NO. [35[ FOR CORERCT ORDER. ORDER by Judge Haywood S. Gilliam, Jr. Granting 33 Stipulation to Exceed Page Limit. (ndrS, COURT STAFF) (Filed on 6/3/2016) Modified on 6/7/2016 (ndrS, COURT STAFF). (Entered: 06/03/2016)
35 ORDER Granting 33 STIPULATION to Exceed Page Limit. Signed by Judge Haywood S. Gilliam, Jr. on 6/3/2016. (ndrS, COURT STAFF) (Filed on 6/3/2016) (Entered: 06/07/2016)
36 MOTION to File Amicus Curiae Brief of the Reporters Committee for Freedom of the Press and 37 Media Organizations and Brief Amicus Curiae in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment filed by Reporters Committee for Freedom of the Press. Motion Hearing set for 8/18/2016 02:00 PM in

Case: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 5 of 6

06/10/2016 06/10/2016
06/10/2016
06/10/2016 06/13/2016 06/24/2016
06/27/2016 06/27/2016 06/27/2016 07/15/2016 08/08/2016 08/08/2016 08/18/2016

Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 6/24/2016. Replies due by 7/1/2016. (KatieLynn, Townsend) (Filed on 6/10/2016) (Entered: 06/10/2016)
37 RESPONSE (re 30 MOTION for Summary Judgment ) and CROSS MOTION for Summary Judgment filed byFreedom of the Press Foundation. (Attachments: # 1 Proposed Order)(Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)
38 Declaration of Marcia Hofmann in Support of 37 Opposition/Response to Motion and Cross Motion for Summary Judgment filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Related document(s) 37 ) (Hofmann, Marcia) (Filed on 6/10/2016) (Entered: 06/10/2016)
39 EXHIBIT 10 re 38 Declaration in Support, filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 10 part 1, # 2 Exhibit 10 part 2, # 3 Exhibit 10 part 3, # 4 Exhibit 10 part 4, # 5 Exhibit 10 part 5, # 6 Exhibit 10 part 6, # 7 Exhibit 10 part 7)(Related document(s) 38 ) (Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)
40 EXHIBITS 11 − 15 re 38 Declaration in Support, filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15)(Related document(s) 38 ) (Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)
Electronic filing error. Incorrect event used. Correct event is EXHIBIT.Corrected by Clerk's Office. No further action is necessary. Re: 40 Declaration in Support, 39 Declaration in Support, filed by Freedom of the Press Foundation (dtmS, COURT STAFF) (Filed on 6/13/2016) (Entered: 06/13/2016)
41 STIPULATION WITH PROPOSED ORDER To Extend by Fourteen Days Defendant's Deadline to File its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment filed by United States Department of Justice. (Bernie, Andrew) (Filed on 6/24/2016) (Entered: 06/24/2016)
42 ORDER by Judge Haywood S. Gilliam, Jr. Granting 41 Stipulation Extend by Fourteen Days Defendant's Deadline to File its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)
Reset Deadline Pursuant to Docket No. 42 as to 30 MOTION for Summary Judgment : Replies due by 7/15/2016. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)
43 ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 36 Motion to File Amicus Curiae Brief. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)
44 REPLY (re 30 MOTION for Summary Judgment ) and Opposition to Plaintiff's Cross−Motion for Summary Judgment filed byUnited States Department of Justice. (Attachments: # 1 Declaration)(Bernie, Andrew) (Filed on 7/15/2016) (Entered: 07/15/2016)
45 REPLY (re 30 MOTION for Summary Judgment ) filed byFreedom of the Press Foundation. (Hofmann, Marcia) (Filed on 8/8/2016) (Entered: 08/08/2016)
46 Declaration of Marcia Hofmann in Support of 45 Reply to Opposition/Response (Supplemental) filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 45 ) (Hofmann, Marcia) (Filed on 8/8/2016) (Entered: 08/08/2016)
47 Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Motion Hearing held on 8/18/2016 (Total Time in Court 35 Minutes). Court Reporter Name Rhonda Aquilina. Plaintiff Attorney Marcia Hoffman. Defendant Attorney Andrew Bernie. The parties cross motions for summary judgment (docket nos. 30 , 37 ) are argued and submitted by the parties, and taken under submission by the

Case: 4:15-cv-3503 As of: 12/01/2017 12:45 PM PST 6 of 6

02/07/2017 02/08/2017 03/01/2017
03/13/2017 03/13/2017

Court. This is a text only Minute Entry (ndrS, COURT STAFF) (Date Filed: 8/18/2016) (Entered: 08/19/2016)
48 NOTICE of Withdrawal of Counsel Neill T. Tseng and Proposed Order Permitting Withdrawal by United States Department of Justice (Tseng, Neill) (Filed on 2/7/2017) Modified on 2/8/2017 (alsS, COURT STAFF). (Entered: 02/07/2017)
49 ORDER Granting 48 Notice of Withdrawal of Counsel Neill T. Tseng and Permitting Withdrawal. Signed by Judge Haywood S. Gilliam, Jr. on 2/8/2017. (ndrS, COURT STAFF) (Filed on 2/8/2017) (Entered: 02/08/2017)
50 CLERKS NOTICE REGARDING CHANGE OF LOCATION FOR JUDGE GILLIAM:
Effective March 2, 2017, Judge Haywood S. Gilliam, Jr.'s courtroom and chambers will be located in the Ronald V. Dellums Federal Building and United States Courthouse, Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612.
On or after March 2, 2017, all filings for matters pending on Judge Gilliam's docket, all court appearances, and all deliveries of chambers copies of documents must be made at the Oakland Courthouse. The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.
Please note that all of Judge Gilliam's case files will be moved to the Oakland Courthouse; therefore, all case numbers assigned to him will be changed slightly to reflect the correct location. Previously, all case numbers started with 3 to indicate the San Francisco office (Example: 3:15−cv−1129−HSG). As of March 2, 2017 all of Judge Gilliam's case files will begin with 4 to indicate the Oakland office, but everything else will stay the same (Example: 4:15−cv−1129−HSG). When e−filing, using the short case number format will always avoid problems when searching for the correct case: 12−12345 (YY−NNNNN).
For information on the Oakland Courthouse please go to: http://cand.uscourts.gov/locations−oakland
This is a text only docket entry; there is no document associated with this notice. (slhS, COURT STAFF) (Filed on 3/1/2017) (Entered: 03/01/2017)
51 ORDER by Judge Haywood S. Gilliam, Jr. RE ( 30 , 37 ) CROSS MOTIONS FOR SUMMARY JUDGMENT. (ndrS, COURT STAFF) (Filed on 3/13/2017) (Entered: 03/13/2017)
52 CLERK'S JUDGMENT in favor of United States Department of Justice against Freedom of the Press Foundation. (ndrS, COURT STAFF) (Filed on 3/13/2017) (Entered: 03/13/2017)