Case 1:05-cv-00845-GK Document 1 Filed 04/28/05 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W. Suite 200 Washington, DC 20009,
Plaintiff,
v.
DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington DC 20530,
Defendant.

) )
) )
) )
) ) Civil Action
) )
) )
) )
) )

COMPLAINT FOR INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for injunctive and other appropriate relief, and seeking the expedited processing and release of agency records requested by the Electronic Privacy Information Center from the Federal Bureau of Investigation.

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) and 552(a)(6)(E)(iii). 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 Electronic Privacy Information Center (“EPIC”) is a public interest research organization incorporated as a not-for-profit corporation in Washington, DC. EPIC's activities include the review of federal law enforcement activities and policies to determine their possible impacts on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports and a bi-weekly electronic newsletter. EPIC also maintains a heavily visited site on the World Wide Web (www.epic.org) containing extensive information on privacy issues, including information EPIC has obtained from federal agencies under the FOIA. 4. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch of the United States Government. DOJ’s components include the Federal Bureau of Investigation (“FBI”). DOJ is an agency within the meaning of 5 U.S.C. § 552(f).
The Sunsetting Provisions of the USA PATRIOT Act 5. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) was signed into law on October 26, 2001. The sweeping law, which amended numerous federal statutes, was marked by its lack of debate and quick passage just six weeks after the September 11, 2001 terrorist attacks. 6. Prior to the passage of the law, members of Congress expressed concern about the extent to which the Foreign Intelligence Surveillance Act (“FISA”) was expanded by the PATRIOT Act. As a result, Congress included a “sunset” provision in the USA PATRIOT Act so that lawmakers could revisit the necessity for expanded FISA powers at a later, less chaotic time. The sunset provision specifies that many of the law’s most
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controversial provisions will become ineffective on December 31, 2005 without further action by Congress.
7. The urgency for Congress and the public to know how the FBI has used these sunsetting authorities is particularly strong now, as congressional committees are conducting numerous PATRIOT Act oversight hearings in April and May 2005, and will determine whether to reauthorize the sunsetting provisions of the USA PATRIOT Act before December 31, 2005.
Plaintiff's FOIA Request for Information Concerning the FBI’s Use of Sunsetting USA PATRIOT Act Powers
8. On March 29, 2005, plaintiff wrote to the FBI and requested under the FOIA the following agency records:
a) Any information concerning the FBI’s use of authorities granted or expanded by Sections 201, 202, 203(b), 203(d), 204, 206, 207, 209, 212, 214, 217, 218, and 220 of the USA PATRIOT Act from October 26, 2001 to the present.
b) Any information concerning the FBI’s use of Section 215 of the USA PATRIOT Act from February 23, 2003 to the present;
c) Any information or communications concerning sunset of USA PATRIOT Act provisions.
9. Plaintiff requested that the processing of its FOIA request be expedited pursuant to 5 U.S.C. § 552(a)(6)(E), noting the public interest in how the FBI has used expanded law enforcement powers granted by the USA PATRIOT Act.
10. By letter dated April 12, 2005, the FBI granted expedited processing of plaintiff’s request.
11. To date, the agency has not issued a final determination on plaintiff’s FOIA request.
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Causes of Action Count I: The FBI has Violated the FOIA by Failing to Expedite the Processing of Plaintiff’s Request 12. Plaintiff realleges the allegations contained in ¶¶ 1-11. 13. Notwithstanding the FBI’s recognition of plaintiff’s right to expedited processing, the agency has failed to comply with the statutory expedited processing provision contained in 5 U.S.C. § 552(a)(6)(E) with respect to plaintiff’s March 29, 2005 FOIA request. To date, the FBI has not completed the processing of plaintiff’s request. 14. Plaintiff has exhausted the applicable administrative remedies with respect to the above-referenced request for expedited processing. 15. Plaintiff is entitled to injunctive relief with respect to the expedited processing of the requested documents.
Count II: The FBI has Violated the FOIA by Failing to Complete Its Processing of Plaintiff’s March 29, 2005 Request 16. Plaintiff realleges the allegations contained in ¶¶ 1-11. 17. The FBI has failed to comply with the statutory time limits contained in 5 U.S.C. § 552(a)(6)(A) with respect to plaintiff’s March 29, 2005 FOIA request. To date, the FBI has not completed the processing of plaintiff’s request. 18. Plaintiff has exhausted the applicable administrative remedies with respect to the above-referenced request. 19. The FBI has wrongfully withheld responsive agency records from plaintiff. 20. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested documents.
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Requested Relief WHEREFORE, plaintiff prays that this Court: A. order the defendant DOJ and its component FBI to expedite the processing of plaintiff’s FOIA request; B. establish a date certain for the FBI to complete processing of responsive documents; C. establish a date certain by which defendant DOJ will file a Vaughn index; D. establish a date certain for submission of defendant DOJ’s dispositive motion on the merits; E. provide for expeditious proceedings in this action; D. award plaintiff its costs and reasonable attorneys fees incurred in this action; and E. grant such other relief as the Court may deem just and proper.
Respectfully submitted,
______________________________________ MARCIA HOFMANN D.C. Bar No. 484136 DAVID L. SOBEL D.C. Bar No. 360418 MARC ROTENBERG D.C. Bar. No. 422825 ELECTRONIC PRIVACY INFORMATION
CENTER
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Case 1:05-cv-00845-GK Document 1 Filed 04/28/05 Page 6 of 6 1718 Connecticut Avenue, N.W. Suite 200 Washington, DC 20009 (202) 483-1140 Counsel for Plaintiff
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 Case 1:05-cv-00845-GK Document 19 Filed 11/16/05 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________

ELECTRONIC PRIVACY

:

INFORMATION CENTER,

:

:

Plaintiff,

:

:

v.

:

:

DEPARTMENT OF JUSTICE,

:

:

:

Defendant.

:

______________________________:

Civil Action No. 05-845 (GK)

MEMORANDUM ORDER

Plaintiff is a public interest research organization which,

among other things, reviews federal law enforcement activities and

policies to determine their potential impact on privacy interests

and civil liberties. On March 29, 2005, Plaintiff filed a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for

the release of various information related to the “USA PATRIOT ACT

of 2001,” Pub. L. No. 107-56, 115 Stat. 272 (2001). Compl. ¶ 8.

Plaintiff sought expedited processing of its FOIA request. Id. ¶

9. By letter dated April 12, 2005, the Federal Bureau of

Investigation (“FBI”), a component of Defendant, granted

Plaintiff’s request for expedited processing. Pl’s Mot. to Compel,

Ex. 3. Thereafter, Plaintiff filed this lawsuit claiming Defendant

failed to process Plaintiff’s FOIA request in a timely manner. On

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June 14, 2005, Plaintiff filed a Motion to Compel Expedited Processing of Plaintiff’s FOIA Request (“Plaintiff’s Motion”).
On November 8, 2005, a Status Conference was held, during which the parties reiterated their positions with respect to the processing of Plaintiff’s FOIA request. That same day, the Court granted Plaintiff’s Motion, and ordered the parties to submit a Joint Praecipe with a proposed timeline for processing the remaining pages, or notify the Court that they were unable to come to an agreement. The parties were informed that if they were unable to come to an agreement, the Court would enter an order based on the record before it. On November 14, 2005, the parties informed the Court that they were unable to reach an agreement regarding the remaining pages.
The Court is unable to determine, based on the Government’s representations at the Status Conference and various written submissions made during this litigation, how many pages it can actually process within a given time frame. At the Status Conference, the Government represented that the universe of potentially responsive pages had been narrowed from approximately 130,000 to 18,000. As early as June 29, 2005, the Government had already determined that 5,000 pages of the 18,000 were potentially responsive. Def.’s Opp’n to Pl.’s Mot. to Compel, Att. A ¶ 20. Yet the Government has not stated that any of those 5,000 pages
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have been completely processed,1 nor that any of those pages have been turned over to Plaintiff.
To provide another example of the inadequacy of the Government’s responses to Plaintiff’s Motion, it filed, in support of its Opposition to Plaintiff’s Motion, the Declaration of David M. Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division, FBI Headquarters. Hardy attested that the FBI should be able to process 1,000 pages per month for responsiveness. Opp’n, Att. A ¶ 26. However, at the Status Conference, almost seven months after the FBI agreed to process Plaintiff’s FOIA request on an expedited basis, the Government was still unable to give even an estimate as to how far along in the review process it was. Nor could the Government provide an estimate as to when processing would be completed.
What is clear is that Plaintiff’s FOIA request, which should have been processed on an expedited basis, has been pending for nearly eight months. An incredibly small amount of pages has been released to Plaintiff.2 While the Court recognizes the difficulty the Government has had in processing Plaintiff’s request, the
1 The Government represents that “because of the nature of plaintiff’s request, identification of responsive records has proven much more difficult than initially anticipated.” Def.’s Resp. to Pl.’s Notice of Filing at 1.
2 The Government represented at the Status Conference that only about 250 pages had been released to Plaintiff.
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record shows that Defendant’s efforts have been unnecessarily slow and inefficient.
Upon consideration of the Motion, Opposition, and Reply, the representations made during the Status Conference, the parties’ submissions in response to the Court’s November 8, 2005 Order, and the entire record herein, it is hereby
ORDERED that Defendant shall complete the processing of 1500 pages every 15 calendar days, and provide to Plaintiff all responsive non-exempt pages contained therein, until processing is complete;3 it is further
ORDERED that Defendant shall notify Plaintiff of the total number of pages responsive to Plaintiff’s FOIA request within 60 calendar days; and it is further
ORDERED that Defendant is not required to categorize responsive documents according to Plaintiff’s different FOIA requests.
3 The Court recognizes that there are several layers of review, each of which take time. However, the Government has represented that it is processing Plaintiff’s FOIA request on a rolling basis, i.e., after a group of documents are reviewed for responsiveness, they are immediately moved to the next stage of review. Therefore, at this point, there should be a number of documents at various stages of the review process, and Defendant should be able to comply with this Order without the need for an initial grace period.
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November 16, 2005

/s/ Gladys Kessler United States District Judge

Copies to: attorneys of record via ECF

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 Case: 1:05-cv-845 As of: 06/24/2015 07:48 PM EDT 1 of 3
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05−cv−00845−GK

ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF JUSTICE Assigned to: Judge Gladys Kessler Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 04/28/2005 Date Terminated: 08/29/2006 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ELECTRONIC PRIVACY INFORMATION CENTER

represented by Marcia Clare Hofmann LAW OFFICE OF MARCIA HOFMANN 25 Taylor Street San Francisco, CA 94102 (415) 830−6664 Email: marcia@marciahofmann.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L. Sobel LAW OFFICE OF ERIK B. RYBERG PO BOX 541 Etna, CA 96027 (202) 246−6180 Fax: (415) 436−9993 Email: sobel@att.net ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF JUSTICE

represented by Marcia Kay Sowles U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 7108 Washington, DC 20530 (202) 514−4960 Fax: (202) 616−8470 Email: marcia.sowles@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benton Gregory Peterson U.S. ATTORNEY'S OFFICE Civil Division Room E4822 555 Fourth Street, NW Washington, DC 20530 (202) 252−2534 Fax: (202) 514−8780 Email: benton.peterson@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 04/28/2005

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE (Filing fee $ 250) filed by ELECTRONIC PRIVACY INFORMATION CENTER.(jf, ) (Entered: 04/29/2005)

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04/28/2005 04/28/2005 04/28/2005 05/09/2005 05/26/2005 05/27/2005 05/27/2005 06/08/2005 06/14/2005
06/29/2005
07/06/2005 10/28/2005 10/28/2005 10/31/2005
10/31/2005 11/08/2005
11/08/2005 11/09/2005 11/14/2005

SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 04/29/2005)
2 NOTICE OF RELATED CASE by ELECTRONIC PRIVACY INFORMATION CENTER. Case related to Case No. 03−2522. (jf, ) (Entered: 04/29/2005)
3 LCvR 7.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (jf, ) (Entered: 04/29/2005)
4 NOTICE of Appearance by Benton Gregory Peterson on behalf of DEPARTMENT OF JUSTICE (Peterson, Benton) (Entered: 05/09/2005)
5 NOTICE of Appearance by Marcia Kay Sowles on behalf of DEPARTMENT OF JUSTICE (Sowles, Marcia) (Entered: 05/26/2005)
6 Defendant's ANSWER to Complaint for Injunctive Relief by DEPARTMENT OF JUSTICE.(Sowles, Marcia) (Entered: 05/27/2005)
7 ORDER that case be returned to Calendar Committee for random assignment. Signed by Judge Ellen S. Huvelle on 5/27/05. (lcesh2) (Entered: 05/27/2005)
Case Reassigned to Judge Gladys Kessler. Judge Ellen S. Huvelle no longer assigned to the case. (jeb, ) (Entered: 06/09/2005)
8 MOTION to Compel Expedited Processing of Plaintiff's Freedom of Information Act Request by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Text of Proposed Order)(Hofmann, Marcia) (Entered: 06/14/2005)
9 Memorandum in opposition to motion re 8 filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Declaration of David M. Hardy (Attachment A)# 2 Exhibit exhibits to Hardy Declaration# 3 Exhibit Transcript (Attachment B)# 4 Text of Proposed Order)(Sowles, Marcia) (Entered: 06/29/2005)
10 REPLY to opposition to motion re 8 filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Declaration of Marcia Hofmann)(Hofmann, Marcia) (Entered: 07/06/2005)
11 NOTICE of Appearance by David L. Sobel on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Sobel, David) (Entered: 10/28/2005)
12 MEMORANDUM by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Sobel, David) (Entered: 10/28/2005)
ORDER: Upon consideration of Plaintiff's Request for a Status Hearing, it is hereby ORDERED that parties shall appear before this Court for a Status Hearing on November 8, 2005 at 10:30 a.m. in Courtroom 19 . Signed by Judge Gladys Kessler on 10/31/05. (CS, ) (Entered: 10/31/2005)
Set/Reset Hearings: Status Conference set for 11/8/2005 10:30 AM in Courtroom 19 before Judge Gladys Kessler. (CS, ) (Entered: 10/31/2005)
13 ORDER granting 8 Plaintiff's Motion for Expedited Processing of Plaintiff's Freedom of Information Act Request; by the close of business on November 9, 2005, Plaintiff shall submit a revised proposed order for Plaintiff's Motion; by the close of business on November 14, 2005, the parties shall submit a joint Praecipe containing either a schedule for the processing of the remaining documents, or notification to the Court that they have been unable to reach an agreement . Signed by Judge Gladys Kessler on 11/8/05. (CS, ) (Entered: 11/08/2005)
Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 11/8/2005. (Court Reporter Susan Tyner.) (tth, ) (Entered: 11/08/2005)
14 NOTICE of Filing by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order)(Hofmann, Marcia) (Entered: 11/09/2005)
15 NOTICE −− Joint Praecipe by ELECTRONIC PRIVACY INFORMATION CENTER, DEPARTMENT OF JUSTICE (Hofmann, Marcia) (Entered: 11/14/2005)

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11/14/2005 11/14/2005 11/15/2005 11/16/2005 11/16/2005 01/31/2006
08/29/2006 08/29/2006

16 RESPONSE to 14 Plaintiff's Notice of Filing filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order Defendant's Proposed Order)(Sowles, Marcia) (Entered: 11/14/2005)
17 MOTION to Strike Defendant's Response to Plaintiff's Notice of Filing by ELECTRONIC PRIVACY INFORMATION CENTER. (Sobel, David) (Entered: 11/14/2005)
18 Memorandum in opposition to motion re 17 Plaintiff's Motion to Strike filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Sowles, Marcia) (Entered: 11/15/2005)
MINUTE ORDER denying 17 Plaintiff's Motion to Strike Defendant's Response to Plaintiff's Notice of Filing . Signed by Judge Gladys Kessler on 11/16/05. (CS, ) Modified on 11/16/2005 (CS, ). (Entered: 11/16/2005)
19 MEMORANDUM ORDER Establishing Procedures for Processing of Plaintiff's FOIA Request. Signed by Judge Gladys Kessler on November 16, 2005. (lcgk1, ) (Entered: 11/16/2005)
20 TRANSCRIPT of Proceedings held on 11/8/05 Status Hearing before Judge Gladys Kessler. Court Reporter: Susan P. Tyner. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (tg, ) (Entered: 02/01/2006)
21 STIPULATION of Dismissal and Proposed Order by ELECTRONIC PRIVACY INFORMATION CENTER, DEPARTMENT OF JUSTICE. (Sowles, Marcia) (Entered: 08/29/2006)
22 STIPULATION AND ORDER: Defendant shall pay plaintiff $12,000 in full settlement of all claims for attorney fees and litigation costs; this stipulation constitutes final resolution of any remaining claims which plaintiff may have against defendant with regard to this FOIA request; this action is hereby dismissed with prejudice and, except as provided in paragraph 2, without fees or costs. Signed by Judge Gladys Kessler on 8/29/06. (tth, ) (Entered: 08/29/2006)