Case3:07-cv-05278-SI Document1 Filed10/17/07 Page1 of 7

1 Marcia Hofmann (SBN 250087)
marcia@eff.org 2 ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street 3 San Francisco, CA 9411 0
Telephone: (415) 436-9333 4 Facsimile: (415) 436-9993

5 David L. Sobel (pro hac vice pending) david@eff. org
6 ELECTRONIC FRONTIER FOUNDATION 1875 Connecticut Ave. NW
7 Suite 650 Washington, DC 20009
8 Telephone: (202) 797-9009 xi 04 Facsimile: (202) 707-9066
9 Attorneys for Plaintiff
10

11
J 14 15 16 17 18 19 20

UNITED STATES DISTRICT C RT

EMc

FOR THE NORTHERN DISTRICT OF CALIFORNIA

j Q 7 ELECTRONIC FRONTIER FOUNDATICC

j Plaintiff, )

v.

)

OFFICE OF THE DIRECTOR OF NATIONAL

) )

INTELLIGENCE,

)

) Defendant. )

COMPLAINT FOR INJUNCTIVE RELIEF

21 1. This is an action under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, for
22 injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of
23 records that Plaintiff requested from Defendant Office of the Director of National Intelligence,
24 concerning the agency's efforts to push for changes to federal surveillance law and ensure that
25 telecommunications companies are not held responsible for their role in warrantless government
26 surveillance activities. There is no dispute that the requested records concern a matter about which
27 there is "[a]n urgency to inform the public about an actual or alleged federal government activity,"
28

Case3:07-cv-05278-SI Document1 Filed10/17/07 Page2 of 7

1 and were "made by a person primarily engaged in disseminating information." 5 U.S.C. § 2 552(a)(6)(E)(v)(II); 32 C.F.R. § 1700.12(c)(2). Therefore, Plaintiff is statutorily entitled to the 3 expedited treatment it seeks.

4

PARTIES

5

2. Plaintiff Electronic Frontier Foundation ("EFF") is a not-for-profit corporation

6 established under the laws of the State of California, with offices in San Francisco, California and

7 Washington, DC. EFF is a donor-supported membership organization that works to inform

8 policymakers and the general public about civil liberties issues related to technology, and to act as

9 a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and

10 disseminate information concerning the activities of federal agencies.

11

3. Defendant Office of the Director of National Intelligence ("ODNI") is a Department

12 of the Executive Branch of the United States Government. ODNI is an "agency" within the

13 meaning of5 U.S.C. § 552(f)(l).

14

JURISDICTION

15

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

16 jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court

17 also has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

18

VENUE AND INTRADISTRICT ASSIGNMENT

19

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

20 1391(e).

21

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

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

23 and division, where Plaintiff maintains its principal place of business.

24

FACTUAL ALLEGATIONS

25

I. The Administration's Campaign to Shield Telecommunications Companies

From Liability for Their Role in Unlawful Surveillance Activity 26

7. On December 15, 2005, the New York Times reported:

27

Months after the Sept. 11 attacks, President Bush secretly authorized the National

28

Security Agency to eavesdrop on Americans and others inside the United States to

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COMPLAINT FOR INJUNCTIVE RELIEF

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Case3:07-cv-05278-SI Document1 Filed10/17/07 Page3 of 7

1

search for evidence of terrorist activity without the court-approved warrants

ordinarily required for domestic spying, according to government officials.

2

Under a presidential order signed in 2002, the intelligence agency has monitored the

3

international telephone calls and international e-mail messages of hundreds, perhaps

thousands, of people inside the United States without warrants over the past three

4

years in an effort to track possible "dirty numbers" linked to AI Qaeda, the officials

said.

5 James Risen and Eric Lichtblau, Bush Lets US. Spy on Callers Without Courts, N.Y. TIMES, Dec.

6 15, 2005. The following day, President Bush confirmed in a radio address that he had authorized a

7 surveillance program to intercept international communications in which one participant was

8 suspected of having a connection to the terrorist organization al Qaeda. President's Radio Address,

9 Dec. 17, 2005, http://www.whitehouse.gov/news/releases/2005112/

10 20051217.html.

11 8. Shortly thereafter, the New York Times reported that the NSA's surveillance activity

12 was far more extensive than the operation President Bush had described. According to the Times:

13

The National Security Agency has traced and analyzed large volumes of telephone

14

and Internet communications flowing into and out of the United States as part of the

eavesdropping program that President Bush approved after the Sept. 11, 2001,

15

attacks to hunt for evidence of terrorist activity, according to current and former

government officials.

16 The volume of information harvested from telecommunication data and voice

17

networks, without court-approved warrants, is much larger than the White House

has acknowledged, the officials said. It was collected by tapping directly into some

18

of the American telecommunication system's main arteries, they said.

19

As part of the program approved by President Bush for domestic surveillance

without warrants, the N.S.A. has gained the cooperation of American

20

telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

21 Eric Lictblau, Spy Agency Mined Vast Data Trove, N.Y. TIMES, Dec. 24, 2005.

22

9. On February 6, 2006, USA Today reported, "[t]he National Security Agency has

23 secured the cooperation of large telecommunications companies, including AT&T, MCI and

24 Sprint, in its efforts to eavesdrop without warrants on international calls by suspected terrorists,

25 according to seven telecommunications executives." Leslie Cauley and John Diamond, Telecoms

26 Let NSA Spy on Calls, USA TODAY, Feb. 6, 2006.

27

10. Approximately forty-one lawsuits have been filed throughout the United States

28

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COMPLAINT FOR INJUNCTIVE RELIEF

Case3:07-cv-05278-SI Document1 Filed10/17/07 Page4 of 7 •

seeking to hold the government and cooperating telecommunications earners responsible for

2 violating the law and the privacy of individuals through the NSA's massive and illegal warrantless

3 spying program. An additional seven suits have arisen out of attempts by state public utility

4 commissioners and attorneys general to seek information from telecommunications carriers about

5 their involvement in warrantless surveillance activities. These lawsuits have been consolidated and

6 are currently pending in the United States District Court for the Northern District of California. In 7 re NSA Telecommunications Records Litigation (MDL Docket No. 06-1791 VRW). 1

8

11. On August 5, 2007, President Bush signed into law the Protect America Act of 2007,

9 legislation that amended the Foreign Intelligence Surveillance Act ("FISA") to expand the

10 government's power to intercept overseas communications of Americans without warrants. Pub.

11 L. No. 110-55, 121 Stat. 552. Among other things, the law protects telecommunications companies

12 from future legal liability for their role in certain government surveillance activity.

13

12. In an article published the same day, the New York Times reported:

14

[The Protect American Act] gave the administration greater power to force

telecommunications companies to cooperate with such spying operations. The

15

companies can now be compelled to cooperate by orders from the attorney general

and the director of national intelligence.

16

Democratic Congressional aides said Sunday that some telecommunications

17

company officials had told Congressional leaders that they were unhappy with that

provision in the bill and might challenge the new law in court. The aides said the

18

telecommunications companies had told lawmakers that they would rather have a

court-approved warrant ordering them to comply.

19

In fact, pressure from the telecommunications companies on the Bush

20

administration has apparently played a major hidden role in the political battle over

the surveillance issue over the past few months.

21 James Risen, Bush Signs Law to Widen Reach for Wiretapping, N.Y. TIMES, Aug. 5, 2007. On

22
information and belief, the assertions quoted above are substantially correct

23 13. While the Protect America Act will expire in February 2008, President Bush has

24 indicated that the Administration will push for even greater legal immunity for the

25 telecommunications industry in the coming months:

26

When Congress returns in September the Intelligence committees and leaders in

27

both parties will need to complete work on the comprehensive reforms requested by

28 1 Plaintiff is Co-Lead Coordinating Counsel in this litigation.

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COMPLAINT FOR INJUNCTIVE RELIEF

Case3:07-cv-05278-SI Document1 Filed10/17/07 Page5 of 7

1

Director [of National Intelligence Mike] McConnell, including the important issue

of providing meaningful liability protection to those who are alleged to have

2

assisted our Nation following the attacks of September 11, 2001.

3 Signing Statement, President Bush Commends Congress on Passage of Intelligence Legislation,

4 Aug. 6, 2007, available at http://www.whitehouse.gov/news/releases/ 2007/08/20070805.html. On

5 information and belief, the assertions quoted above are substantially correct.

6

14. In an interview discussing the government's warrantless surveillance activities

7 published by the El Paso Times on August 22, 2007, Director McConnell stated:

8

[U]nder the president's program, the terrorist surveillance program, the private

sector had assisted us. Because if you're going to get access you've got to have a

9

partner and they were being sued. Now if you play out the suits at the value they're

claimed, it would bankrupt these companies. So my position was that we have to

10

provide liability protection to these private sector entities.

11 Chris Roberts, Transcript: Debate on the Foreign Intelligence Surveillance Act, EL PASO TIMES,

12 Aug. 22, 2007. On information and belief, the assertions quoted above are substantially correct.

13

15. According to a recent article published by Newsweek, "[t]he nation's biggest

14 telecommunications companies, working closely with the White House, have mounted a secretive

15 lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits

16 against them for assisting the U.S. intelligence community's warrantless surveillance programs."

17 Michael Isikoff and Mark Hosenball, The Phone Companies' Secret Lobbying Campaign,

18 NEWSWEEK, Sept. 20, 2007. On information and belief, the assertions quoted above are

19 substantially correct.

20

II. Plaintiff's FOIA Requests and Request for Expedited Processing

21

16. In two letters sent by facsimile to ODNI and dated August 31, 2007, Plaintiff

22 requested under the FOIA all records from April 2007 to August 31, 2007 concerning briefings,

23 discussions, or other exchanges that Director McConnell or other ODNI officials have had

24 concerning amendments to FISA with a.) representatives of telecommunications companies, and

25 b.) offices of members of the Senate or House of Representatives, including any discussion of

26 immunizing telecommunications companies or holding them otherwise unaccountable for their role

27 in government surveillance activities.

28

17. In its August 31 letters, Plaintiff also formally requested that the processing of these

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COMPLAINT FOR INJUNCTIVE RELIEF

Case3:07-cv-05278-SI Document1 Filed10/17/07 Page6 of 7

requests be expedited because they pertain to information about which there is "[a]n urgency to

2 inform the public about an actual or alleged federal government activity," and were "made by a

3 person primarily engaged in disseminating information." 5 U.S.C. § 552(a)(6)(E)(v)(II); 32 C.F.R.

4 § 1700.12(c)(2).

5

18. By two facsimiles sent September 10, 2007, ODNI acknowledged receipt of Plaintiff's

6 FOIA requests, and informed Plaintiff that its requests for expedited processing had been granted.

7

19. Notwithstanding Defendant ODNI' s purported decision to expedite the processing of

8 Plaintiff's FOIA requests, to date, the agency has neither completed the processing of Plaintiff's

9 requests, nor informed Plaintiff of an anticipated date for the completion of the processing of the

10 requests.

11

20. Not only has ODNI failed to expedite the processing of Plaintiff's requests, it has also

12 exceeded the generally applicable twenty-day deadline for the processing of any FOIA request.

13

21. Plaintiff has exhausted the applicable administrative remedies.

14

22. Defendant ODNI has wrongfully withheld the requested records from Plaintiff.

15

CAUSE OF ACTION

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

17

23. Plaintiff repeats and realleges paragraphs 1-22.

18

24. ODNI has wrongfully withheld agency records requested by Plaintiff by failing to

19 comply with the statutory time limit for the processing of FOIA requests.

20

25. Plaintiff has exhausted the applicable administrative remedies with respect to ODNI's

21 wrongful withholding of the requested records.

22

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

23 requested documents.

24

REQUESTED RELIEF

25 WHEREFORE, Plaintiff prays that this Court:

26

A. order Defendant ODNI to process immediately the requested records m their

27

entirety;

28

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COMPLAINT FOR INJUNCTIVE RELIEF

Case3:07-cv-05278-SI Document1 Filed10/17/07 Page7 of 7

1

B. order Defendant ODNI, upon completion of such expedited processing, to disclose

2

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

3

C. provide for expeditious proceedings in this action;

4

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

5

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

6 DATED: October 17, 2007 7 8 9 10 11 12 13 14 15 16

By~~~~~~~~~~~~--arcia Hofmann, sq.
ELECTRONIC FRON 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 Facsimile: (415) 436-9993
David L. Sobel (pro hac vice pending) ELECTRONIC FRONTIER FOUNDATION 1875 Connecticut Ave. NW Suite 650 Washington, DC 20009 Telephone: (202) 797-9009 x104 Facsimile: (202) 707-9066
Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION

17

18

19

20

21

22

23

24

25

26

27

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COMPLAINT fOR INJUNCTIVE RELIEF

 
 Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 1 of 12

United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 ELECTRONIC FRONTIER FOUNDATION,

No. C 07-5278 SI

9

Plaintiff,

10 v.

11 OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE,
12 Defendant.
13 /
14

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

15

16

Before the Court is plaintiff’s motion for a preliminary injunction. Pursuant to Civil Local Rule

17 7-1(b), the Court determines that the matter is appropriate for resolution without oral argument, and

18 VACATES the November 30, 2007 hearing. Having considered the papers submitted, and for the

19 reasons set forth below, the Court GRANTS in part and DENIES in part plaintiff’s motion.

20

21

22

BACKGROUND

23

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

24 the non-profit Electronic Frontier Foundation (“EFF”), seeks a preliminary injunction ordering

25 defendant, the Office of the Director of National Intelligence (“ODNI”), to expedite the processing and

26 release of records concerning the defendant’s communications with telecommunications carriers and

27 members of Congress regarding pending legislation that would amend the Foreign Intelligence

28 Surveillance Act (“FISA”).

Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 2 of 12

United States District Court For the Northern District of California

1

2 I. The debate over telecommunications carriers’ liability for their role in surveillance activity

3

Since late 2005, numerous lawsuits have been filed throughout the United States challenging the

4 legality of a U.S. government-run domestic surveillance program, and seeking information about

5 corporate involvement in the surveillance activities. See In re NSA Telecommunications Records

6 Litigation, Case No. MDL 06-1791 VRW) (N.D. Cal. Aug. 14, 2006) (order transferring consolidated

7 cases).

8

On August 5, 2007, President Bush signed into law the Protect America Act of 2007, which

9 amended the Foreign Intelligence Surveillance Act (“FISA”) to expand the government’s authority to

10 gather intelligence with the help of domestic communications service providers, and to protect

11 telecommunications companies from future legal liability for their role in the intelligence-gathering

12 activity. Pub. L. No. 110-55, 121 Stat. 552. While the Protect America Act is set to expire in February

13 2008 without further Congressional action, the administration has stated it is seeking further legislative

14 reform that would include legal immunity for telecommunications companies:

15

When Congress returns in September [2007] the Intelligence committees and leaders in

both parties will need to complete work on the comprehensive reforms requested by

16

Director [of National Intelligence Mike] McConnell, including the important issue of

providing meaningful liability protection to those who are alleged to have assisted our

17

Nation following the attacks of September 11, 2001.

18 Signing Statement, President Bush Commends Congress on Passage of Intelligence Legislation, Aug.

19 6, 2007, Hoffman Decl. Ex. F.

20

Congress has held numerous hearings regarding possible additional changes to FISA, and bills

21 are currently pending before both houses of Congress that, if passed, would amend FISA further. See

22 RESTORE Act of 2007, H.R. 3773, 110th Cong. (introduced Oct. 9, 2007); FISA Act of 1978

23 Amendments Act of 2007, S. 2248, 110th Cong. (introduced Oct. 19, 2007). The Senate bill in 24 particular purports to require dismissal of any state or federal lawsuit against a telecommunications 25 carrier for facilitating government surveillance if the Attorney General certifies to the court that the 26 company was assisting in activity that was authorized by the President. See S. 2248 § 202, Hoffman 27 Decl. Ex. I. 28

2

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United States District Court For the Northern District of California

1 II. Statutory framework

2

Government agencies normally process FOIA requests for agency records on a first-in, first-out

3 basis. Ordinarily agencies must respond to FOIA requests within 20 working days of their receipt of

4 the requests. 5 U.S.C. § 552(a)(6)(A)(i). In 1996, Congress amended the FOIA to provide for

5 “expedited processing” of certain requests. See Electronic Freedom of Information Amendments of

6 1996 (“EFOIA”), Pub. L. No. 104-231, § 8 (codified at 5 U.S.C. § 552(a)(6)(E)). Expedited processing,

7 when granted, entitles the requester to move immediately to the front of an agency processing queue.

8

As part of EFOIA, Congress directed agencies to promulgate regulations providing for expedited

9 processing of requests for records (i) “in cases in which the person requesting the records demonstrates

10 a compelling need,” and (ii) “in other cases determined by the agency.” 5 U.S.C. § 552(a)(6)(E)(i).

11 FOIA defines “compelling need” to mean, “with respect to a request made by a person primarily

12 engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal

13 Government activity.” 5 U.S.C. § 552(a)(6)(E)(v). FOIA further provides that “[a]n agency shall

14 process as soon as practicable any request for records to which the agency has granted expedition.”

15 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added).

16

17 III. Plaintiff’s expedited FOIA requests, and defendant’s response to date

18

On August 31, 2007, plaintiff faxed two letters to defendant that requested, under FOIA, all

19 records from April 2007 to August 31, 2007 concerning briefings, discussions, or other exchanges that

20 Director McConnell or ODNI officials have had concerning amendments to FISA with (a)

21 representatives of telecommunications companies, and (b) offices of members of the Senate or House

22 of Representatives, including any discussion immunizing telecommunications companies or holding

23 them otherwise unaccountable for their role in government surveillance activities. Hoffman Decl. Exs.

24 K & L. In those letters, plaintiff also asked that the requests be expedited because they seek the

25 disclosure of information about which there is “[a]n urgency to inform the public about an actual or

26 alleged Federal Government activity,” and were “made by a person primarily engaged in disseminating

27 information,” as provided in 5 U.S.C. § 552(a)(6)(E)(v)(II) and 32 C.F.R. § 1700.12(c)(2). Id.

28

On September 10, 2007, defendant faxed two letters to plaintiff acknowledging the FOIA

3

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United States District Court For the Northern District of California

1 requests, and stating that they would receive expedited treatment. However, defendants have not

2 provided any responsive materials to plaintiff to date.

3

To aid the Court in understanding the reason for the delay, defendant submitted the declaration

4 of John F. Hackett, Director of the Information Management Office (“IMO”) for the ODNI. He

5 explained that plaintiff’s requests were granted expedited status, and were moved to the front of

6 defendant’s FOIA request queue ahead of forty-two other pending requests. Hackett Decl. ¶ 5. To

7 respond to the requests, defendant determined it would search for records in a number of offices within

8 ODNI, and that individuals likely to have responsive materials would search their electronic and paper

9 files. Id. ¶. 6. “As of [November 9, 2007], most of the searches for responsive material have been

10 completed” and they are now being processed. Id. ¶ 8. Mr. Hackett describes the processing in this case

11 as follows:

12

As the records are located and forwarded to the IMO, the FOIA analyst handling this

case conducts a continual analysis and review of the documents located. During the

13

review process the analyst handling this case first removes any non-responsive and

duplicative material from the records that are received. She then creates working copies

14

of the documents and document indexes and assesses whether there would be any

necessary consultations and/or referrals with those entities maintaining equity in the

15

documents. She also reviews the records for the application of any FOIA exemptions.

16 Id. Defendant asserts it has identified approximately 250 pages of unclassified material and about sixty-

17 five page of classified material so far. Id. at ¶ 9. Defendant asserts it is focusing primarily on

18 processing unclassified materials as soon as practicable. Id. at ¶ 12. It anticipates providing plaintiffs

19 an interim response by November 30, 2007, and a final response by December 31, 2007.

20

Now before the Court is plaintiff’s motion for a preliminary injunction seeking an order

21 requiring defendant to produce or identify all responsive records within ten days of the issuance of the

22 order, and an index pursuant to Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), ten days

23 thereafter. 24

25

26

LEGAL STANDARD

27

Requests for injunctive relief may be satisfied by either of two sets of criteria. The “traditional”

28 test requires the movant to: (1) establish a strong likelihood of success on the merits; (2) show the

4

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United States District Court For the Northern District of California

1 possibility of irreparable injury to the plaintiff if the preliminary relief is not granted; (3) show a balance

2 of hardships favoring the movant; and (4) show that granting the injunction favors the public interest.

3 See L.A. Mem. Coliseum Comm’n v. Nat'l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). The

4 “alternative” test requires that the movant demonstrate either a combination of probable success on the

5 merits and the possibility of irreparable injury, or that serious questions are raised and the balance of

6 hardships tips sharply in his favor. See Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003).

7 Under either test, plaintiff must demonstrate that there exists a significant threat of irreparable injury.

8 Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985).

9

10

11

DISCUSSION

12 I. Preliminary injunctions may be granted in FOIA cases

13

Defendant contends that a preliminary injunction is generally inappropriate to obtain relief on

14 claims sought under FOIA. Defendant relies on several cases, including Al-Fayed v. CIA, 2000 WL

15 34342564 at *6 (D.D.C. Sept. 20, 2000) (finding that “upon consideration of the parties’ arguments, the

16 statutory and regulatory context, and the applicable case law,” emergency relief was not warranted

17 despite the agency’s delay in responding to FOIA requests); Assassination Archives & Research Ctr.,

18 Inc. v. CIA, Case No. 88-2600, 1988 U.S. Dist. LEXIS 18606 at *1 (denying motion for preliminary

19 injunction to expedite processing of FOIA request).

20

Plaintiff concedes that preliminary injunctive relief is not the normal enforcement mechanism

21 in FOIA cases. However, it contends that such relief has been found appropriate where a requesting

22 party establishes that its requests are entitled to expedited processing under the Act, and the government

23 fails to process them in a timely manner. See Gerstein v. CIA, Case No. 06-4643 MMC, 2006 WL 24 3462659, at *5 (N.D. Cal. Nov. 29, 2006) (granting a motion to compel the processing of a FOIA 25 request within 30 days); see also Cleaver v. Kelley, 427 F. Supp. 80 (D.D.C. 1976) (issuing a 26 preliminary injunction requiring response to a FOIA request within 21 days due to an “exceptional and 27 urgent need”); Aguilera v. FBI, 941 F. Supp. 144 (D.D.C. 1996) (issuing a preliminary injunction 28 requiring compliance with FOIA requests within 30 days). Plaintiff relies most heavily on Electronic

5

Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 6 of 12

United States District Court For the Northern District of California

1 Privacy Information Center v. Department of Justice (“EPIC”), 416 F. Supp. 2d 30 (D.D.C. 2006). In

2 that case, the court found that “[o]n numerous occasions, federal courts have entertained motions for

3 a preliminary injunction in FOIA cases and, when appropriate, have granted such motions.” Id. at 35

4 (citations omitted). Plaintiff contends that the government is attempting to re-litigate the EPIC case here

5 by re-asserting the same arguments that were considered by the district court in the District of Columbia.

6

While defendant has presented examples of cases where the courts declined to issue preliminary

7 injunctions, those cases were not decided on jurisdictional grounds. See, e.g., Al-Fayed, 2000 WL

8 34342564. Instead, the courts found that injunctive relief was not warranted based on the specific facts

9 of each case. Id. In contrast, plaintiff has presented examples of cases where courts have issued

10 preliminary injunctions. See, e.g., EPIC, 416 F. Supp. 2d at 35 (citing cases). As the D.C. Circuit has

11 found, “[t]he FOIA imposes no limits on courts’ equitable powers in enforcing its terms.” Payne Enters.

12 v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988), citing Renegotiation Bd. v. Bannercraft Clothing

13 Co., 415 U.S. 1, 19-20 (1974). Accordingly, the Court finds that it may consider the merits of plaintiff’s

14 motion for a preliminary injunction.

15

16 II. Plaintiff is entitled to a preliminary injunction in this case

17

The parties disagree over whether plaintiff can meet its burden to show it is entitled to a

18 preliminary injunction. That is, they dispute whether plaintiff can: (1) establish a strong likelihood of

19 success on the merits; (2) show the possibility of irreparable injury to plaintiff if the preliminary relief

20 is not granted; (3) show a balance of hardships favoring plaintiff; and (4) show that granting the

21 injunction favors the public interest. See L.A. Mem’l Coliseum Comm’n, 634 F.2d at 1200.

22

23

A. Plaintiff is likely to prevail on the merits of its claim

24

The essence of plaintiff’s claim centers on the question of whether defendant has processed

25 plaintiff’s FOIA requests in an expedited manner within the time frame required by the FOIA and the

26 defendant’s own regulations. As recounted above, the FOIA requires each agency to “promulgate

27 regulations . . . providing for expedited processing requests for records . . . in cases in which the person

28 requesting the records demonstrates a compelling need and . . . in other cases determined by the

6

Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 7 of 12

United States District Court For the Northern District of California

1 agency.” 5 U.S.C. § 552(a)(6)(E)(i). Pursuant to the statutory directive, defendant ODNI has issued

2 regulations providing, in relevant part, that expedited requests “will be taken out of order and given

3 expedited processing treatment,” which means they will be handled “as soon as practicable.” See 32

4 C.F.R. §§ 1700.12(b), (c)(2); 5 U.S.C. § 552(a)(6)(E)(iii). Here, defendant has already determined that

5 plaintiffs’ request is entitled to expedited processing. Thus the only question remaining is whether

6 defendant is actually processing the request “as soon as practicable.”

7

Plaintiff relies on EPIC for the proposition that the statute’s “phrase ‘as soon as practicable,’ in

8 the context of a provision of FOIA allowing for expedited processing cannot be interpreted to impose

9 a lower burden on the agency than would otherwise exist.” 416 F. Supp. at 39. The EPIC case was

10 based on facts nearly identical to those presented here. In that case, an electronic privacy organization

11 sought expedited release, under FOIA, of information possessed by the Department of Justice relating

12 to the government’s domestic surveillance program. Id. at 34. The court held that where an agency fails

13 to comply with the twenty-day deadline applicable to a standard FOIA request, the agency

14 “presumptively also fails to process an expedited request ‘as soon as practicable.’” Id. at 39. While the

15 agency may rebut the presumption by showing that the twenty-day time period is “truly not practicable,”

16 courts are not required simply to “take at face value an agency’s determination that more time is

17 necessary.” Id. at 37, 39. To require courts to accept agency determinations at face value “would give

18 the agency unchecked power to drag its feet and pay lip service to a requester’s statutory and regulatory

19 entitlement to expedition.” Id. at 37 (international quotation marks and citations omitted). Instead, the

20 EPIC court required the agency to present credible evidence, rather than vague assertions, to show that

21 further delay is necessitated by “exceptional circumstances.” Id. at 38-39.

22

Defendant contends that the statutory and regulatory language does not require processing within

23 a specific time period. Instead, defendant argues that the expedited processing provision of FOIA is 24 merely an ordering mechanism, allowing certain FOIA requests to jump to the front of the agency’s 25 processing queue and avoid the customary “first in, first out” processing practice. Afer that happens, 26 defendant asserts that “practicability” is the only standard that governs how quickly the request can be 27 processed. Defendant further contends that the provision requiring an agency response within twenty 28 working days for a non-expedited request “has no bearing on when expedited processing must be

7

Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 8 of 12

United States District Court For the Northern District of California

1 completed.” Opp’n at 10. Rather, it argues that “a court may grant an extension to allow the agency

2 to finish its search and processing where the agency has been unable to meet the deadline because of

3 exceptional circumstances.” Id. at 11, citing Ogelsby v. United States Dep’t of the Army, 920 F.2d 57,

4 64 (D.C. Cir. 1990) (“Frequently if the agency is working diligently, but exceptional circumstances have

5 prevented it from responding on time, the court will refrain from ruling on the request itself and allow

6 the agency to complete its determination.”) (emphasis added).

7

The Court notes that the agency has not formally requested an extension beyond the twenty

8 working-day deadline that has already passed in this case. Furthermore, defendant’s explanation for its

9 delay does not appear to demonstrate the existence of “exceptional circumstances.” Defendant contends

10 that what is practicable will depend on factors including the size and scope of the request, the level of

11 detail involved, the number of offices with responsive documents, other agencies that must be consulted,

12 as well as the existence of classified materials. Defendant asserts that its review includes page-by-page

13 and line-by-line review of the documents to determine which, if any, FOIA exemptions may apply.

14 They also assert that classified materials require extra scrutiny.

15

These assertions appear to the Court to be generically applicable to all FOIA requests that would

16 be received by the ODNI. Defendant has offered no explanation or evidence of the existence of

17 “exceptional circumstances” specific to this case. Furthermore, the agency’s description of its

18 processing methods in this case—which apparently are assigned to a single agent—appear to be wholly

19 inadequate to the task of handling an expedited request, let alone a standard request, on the timely basis

20 required by Congress. See Hackett Decl. ¶ 8. While defendant notes that it has a small FOIA staff, that

21 argument is more properly directed at Congress, not to the courts. Fiduccia v. Dep’t of Justice, 185 F.3d

22 1035, 1041 (9th Cir. 1999). As the Ninth Circuit stated:

23

Though FOIA doubtless poses practical difficulties for federal agencies, federal agencies

can persuade Congress on the practical problems they have, and attempt to persuade

24

Congress to change the law or provide additional funds to achieve compliance. So long

as the Freedom of Information Act is the law, we cannot repeal it by a construction that

25

vitiates any practical utility it may have . . . . It may be that agency heads, such as the

Attorney General in this case, can be forced by the Freedom of Information Act to divert

26

staff from programs they think more valuable to Freedom of Information Act compliance

. . . . But these policy concerns are legislative, not judicial . . . . Congress wrote a tough

27

statute on agency delay in FOIA compliance, and recently made it tougher.

28 Id. Plaintiff is correct that defendant has failed to provide the Court with “specific information that

8

Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 9 of 12

United States District Court For the Northern District of California

1 might explain why it will require four months to process ‘approximately 250 pages of unclassified

2 material and approximately sixty-five pages of classified material’ identified as responsive to the FOIA

3 requests.” Reply at 6 (quoting Opp’n at 6). Accordingly, the Court finds that plaintiff is likely to

4 prevail on the merits of its claim.

5

6

B. Plaintiff will suffer irreparable injury in the absence of relief

7

Plaintiff cites New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), for the proposition that

8 our democracy has an interest in “the uninhibited, robust, and wide-open debate about matters of public

9 importance that secures an informed citizenry.” See also Cornelius v. NAACP Legal Def. & Educ. Fund,

10 473 U.S. 788, 815 (1985) (quoting Sullivan); Bd. of Educ. v. Pico, 457 U.S. 853, 876 (1982) (“the

11 Constitution presupposes the existence of an informed citizenry prepared to participate in governmental

12 affairs”). On that basis, plaintiff contends that the very nature of its claim depends on timeliness

13 because, as the D.C. Circuit has recognized, “stale information is of little value.” Payne Enters., Inc.

14 v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988); EPIC, 416 F. Supp. 2d at 40. As the EPIC court

15 found, “the loss of that ‘value’ constitutes a cognizable harm,” which, in cases like this “will likely be

16 irreparable.” 416 F. Supp. 2d at 40-41. Plaintiff asserts that defendant’s proposed December 31, 2007

17 release date “appears designed to keep the requested documents from contributing to the critical portion

18 of the debate that will occur in November and December.” Reply at 10 n.8.

19

Defendant acknowledges that plaintiff seeks the information it requested in order to inform the

20 public debate over the FISA amendments Congress is currently and actively considering. Nevertheless,

21 defendant characterizes as “pure speculation” plaintiff’s argument that the information will be useless

22 if it is produced after Congress amends the law. Opp’n at 16. Specifically, defendant contends that

23 plaintiff has not established that its request will produce any responsive, non-exempt documents that 24 will contribute to the debate. While defendant is aware that members of Congress have expressed an 25 intent to pass amendments to the FISA before the end of the year, it argues that the debate over that law 26 has been going on for many years, and that any harm would not be “irreparable” because “legislation 27

28

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Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 10 of 12

United States District Court For the Northern District of California

1 is always subject to further amendment by Congress.” Opp’n at 17.1

2

Defendant’s position is without merit. As another court in this district found, irreparable harm

3 can exist in FOIA cases such as this because ongoing public and congressional debates about issues of

4 vital national importance “cannot be restarted or wound back.” Gerstein v. CIA, 2006 WL 3462659 at

5 *4 (N.D. Cal. Nov. 29 2006) (order granting motion to compel responses to FOIA requests); see also

6 EPIC, 416 F. Supp. 2d at 41 (finding an adequate showing of irreparable harm to support a preliminary

7 injunction). Here, the Protect America Act is set to expire in February 2008, and Congress is currently

8 considering legislation that would amend the FISA further. Plaintiff seeks information from defendant

9 specifically so that plaintiff, Congress, and the public may participate in the debate over the pending

10 legislation on an informed basis. Accordingly, the Court finds that plaintiff has shown the likelihood

11 of irreparable injury.

12

13

C. Injunctive relief will not burden others’ interests

14

Plaintiff asserts that defendant cannot be “burdened” by a requirement that it merely comply with

15 the law. As plaintiff suggests, the relief it seeks is nothing more than the expedited treatment to which

16 defendant concedes plaintiff is entitled. Defendant makes no argument that it would be burdened by

17 complying with the law, except to the extent that it may be required to readjust its internal priorities.

18 As discussed above, any complaints about the burdens of complying with the law are best addressed to

19 Congress, not the courts. See Fiduccia, 185 F.3d at 1041. Accordingly, the Court finds that there is no

20 undue burden here that would militate against issuing a preliminary injunction.

21

22

D. The public interest favors the requested relief

23

Plaintiff contends a preliminary injunction in this case will serve the public interest in two ways.

24 First, “there is an overriding public interest . . . in the general importance of an agency’s faithful

25

1Defendant relies on Travelers Casualty and Surety Company of America v. Pacific Gas and 26 Electric Company, 127 S. Ct. 1199, 1206 (2007) in support of its argument that any harm would not be

27

“irreparable” because Congress can always change the law again. However, the Travelers Court was merely pointing out the obvious fact that Congress could change the Bankruptcy Code to allow for

28

recovery of attorneys fees if it so chose. The Supreme Court said absolutely nothing in that case about the nature of the harm that would result due to an agency delay in a FOIA case such as this.

10

Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 11 of 12

United States District Court For the Northern District of California

1 adherence to its statutory mandate.” Jacksonville Port. Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir.

2 1977); EPIC, 416 F. Supp. 2d at 42. Second, the public interest will be served by the expedited release

3 of the requested records because it will further the FOIA’s core purpose of “shedding light on an

4 agency’s performance of its statutory duties.” Dep’t of Justice v. Reporters Comm. for Freedom of the

5 Press, 489 U.S. 749, 773 (1989).

6

Defendant argues that a preliminary injunction would disrupt the “delicate balance” Congress

7 mandated between the interest of disclosure and the need to protect documents that would cause harm.

8 See 5 U.S.C. § 552(b).

9

The Court finds that, because defendant has failed to produce any evidence of extraordinary

10 circumstances that would justify an extension of time in this case, the balance over which Congress is

11 justifiably concerned is not implicated here. Defendant has already identified responsive documents,

12 has segregated potentially classified portions thereof, and has had ample time to process and release the

13 documents. If defendant is truly concerned about achieving the delicate balance required by Congress,

14 it should consider assigning more than one agent to the processing of plaintiff’s requests.

15

Accordingly, the Court GRANTS plaintiff’s request for a preliminary injunction requiring

16 defendant to comply with the law and process plaintiff’s FOIA requests within ten days of this order.

17

18

E. Ordering production of a Vaughn index is premature at this point

19

In addition to requesting an order requiring defendant to release documents within ten days of

20 this order, plaintiff also seeks a Vaughn index of withheld records ten days thereafter. A Vaughn index,

21 see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), “must identify each document withheld, and

22 provide a particularized explanation of how disclosure would violate an exemption” under FOIA. See

23 Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996). Production of a Vaughn index is not necessary in all 24 cases, and in particular, is unnecessary where an “affidavit submitted by an agency is sufficient to 25 establish that the requested documents should not be disclosed,” or where “a FOIA requester has 26 sufficient information to present a full legal argument.” Id. at 804; see also Gerstein, 2006 WL 3462659 27 at *5. Accordingly, the Court DENIES plaintiff’s request for a Vaughn index WITHOUT PREJUDICE 28 to such relief in the future should it be necessary.

11

Case 3:07-cv-05278-SI Document 26 Filed 11/27/2007 Page 12 of 12

United States District Court For the Northern District of California

1

2

CONCLUSION

3

For the foregoing reasons and for good cause shown, the Court GRANTS in part and DENIES

4 in part plaintiff’s motion for a preliminary injunction [Docket No. 6]. Defendant SHALL respond to

5 plaintiff’s FOIA request and provide an initial release no later than November 30, 2007, as it suggested

6 it would do in its brief. Defendant is further ORDERED to provide a final release of all responsive,

7 non-exempt documents no later than December 10, 2007. Defendant is also ORDERED to provide an

8 affidavit with its final response setting forth the basis for withholding any responsive documents it does

9 not release.

10

11

IT IS SO ORDERED.

12

13 Dated: November 27, 2007 14

SUSAN ILLSTON United States District Judge

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 Case 3:07-cv-05278-SI Document 44 Filed 03/04/2008 Page 1 of 3

1 David L. Sobel (pro hac vice)
2 sobel@eff.org ELECTRONIC FRONTIER FOUNDATION
3 1875 Connecticut Ave. NW Suite 650
4 Washington, DC 20009 Telephone: (202) 797-9009 x104
5 Facsimile: (202) 707-9066

6 Kurt Opsahl (191303) kurt@eff.org
7 Marcia Hofmann (250087) marcia@eff.org
8 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street
9 San Francisco, CA 94110 Telephone: (415) 436-9333 x116
10 Facsimile: (415) 436-9993

11 Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION
12

13

UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16

ELECTRONIC FRONTIER FOUNDATION, ) NO. C 07-5278 SI

17

)

Plaintiff, ) STIPULATION OF DISMISSAL

18

)

19

v.

) )

20

OFFICE OF THE DIRECTOR OF NATIONAL

) )

INTELLIGENCE,

)

21

)

Defendant. )

22

)

)

23

24

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), plaintiff Electronic Frontier Foundation (“EFF”)

25 and defendant Office of the Director of National Intelligence (“ODNI”) stipulate that all claims in

26 the above-captioned case are dismissed with prejudice in their entirety.

27

To facilitate the parties’ negotiation of attorney’s fees, EFF and ODNI stipulate to a waiver

28

-1-
STIPULATION OF DISMISSAL

Case 3:07-cv-05278-SI Document 44 Filed 03/04/2008 Page 2 of 3

1 of the 14-day time limit to serve and file a motion for an award of such fees under Local Rule 54-6.
2 If EFF and ODNI are unable to reach a mutually acceptable agreement on this issue, they will brief
3
4 the matter according to the following schedule:

5

x

EFF will move for attorney’s fees no later than April 11, 2008.

6

x

ODNI will oppose EFF’s motion for attorney’s fees no later than April 25, 2008.

7

x

EFF will reply to ODNI’s opposition no later than May 2, 2008.

8

x

The Court will hear the motion for attorney’s fees on May 16, 2008.

9

10
DATED: March 4, 2008 11

Respectfully submitted,

12 David L. Sobel, Esq. (pro hac vice)

JEFFREY S. BUCHOLTZ

ELECTRONIC FRONTIER FOUNDATION Acting Assistant Attorney General

13 1875 Connecticut Ave. NW

Suite 650

CARL J. NICHOLS

14 Washington, DC 20009

Deputy Assistant Attorney General

Telephone: (202) 797-9009 x104

15 Facsimile: (202) 797-9066

SCOTT N. SCHOOLS

United States Attorney

16

/s/

ELIZABETH J. SHAPIRO

17 Kurt Opsahl, Esq.

Assistant Director, Federal Programs Branch

Marcia Hofmann, Esq.

18 ELECTRONIC FRONTIER FOUNDATION

454 Shotwell Street

/s/

19 San Francisco, CA 94110

ANDREW I. WARDEN (IN Bar No. 23840-49)

Telephone: (415) 436-9333

Trial Attorney, U.S. Department of Justice

20 Facsimile: (415) 436-9993

Civil Division, Federal Programs Branch

20 Massachusetts Ave., N.W., Room 6120

21 Attorneys for Plaintiff

Washington, D.C. 20530

Electronic Frontier Foundation

Telephone: (202) 616-5084

22

Facsimile: (202) 616-8460

E-mail: Andrew.Warden@usdoj.gov

23

Attorneys for Defendant Office of the

24

Director of National Intelligence

25

26

27

28

-2-
STIPULATION OF DISMISSAL

Case 3:07-cv-05278-SI Document 44 Filed 03/04/2008 Page 3 of 3

1 * * *
2
PURSUANT TO STIPULATION, IT IS SO ORDERED. 3

4 DATED: ___________________ ___________________________________________

5

Honorable Susan Illston

United States District Judge 6

7

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-3-
STIPULATION OF DISMISSAL

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 ELECTRONIC FRONTIER FOUNDATION,

No. C 07-05278 SI

9 10 v.

Plaintiff,

ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

United States District Court For the Northern District of California

11 OFFICE OF THE DIRECTOR OF NATIONAL

INTELLIGENCE, 12

Defendant.

13

/

14

15 Plaintiff has filed a motion for attorney=s fees and costs. The motion was scheduled for hearing
16 on May 23, 2008, but the Court vacated the hearing pursuant to Civil Local Rule 7-1(b). Having
17 considered the arguments of the parties and the papers submitted, and for good cause shown, the Court
18 hereby GRANTS IN PART plaintiff’s motion.
19

20 BACKGROUND
21 Plaintiff Electronic Frontier Foundation is a non-profit civil liberties organization seeking
22
attorney’s fees and other litigation costs from the Office of the Director of National Intelligence. On 23
October 17, 2007, plaintiff filed suit under the Freedom of Information Act (“FOIA”) to compel 24
defendant’s timely processing and production of records pertaining to defendant’s communications with 25
telecommunications carriers and members of Congress regarding pending legislation that would amend 26
the Foreign Intelligence Surveillance Act (“FISA”). On October 29, 2007, plaintiff filed a motion for 27
a preliminary injunction to compel defendant’s timely processing and production of the records in light 28

United States District Court For the Northern District of California

1 of pending legislation. On November 27, 2007, the Court granted in part and denied in part plaintiff’s

2 preliminary injunction motion. Specifically, the Court ordered defendant to perform an interim release

3 of documents on November 30, 2007, and to complete its release no later than December 10, 2007. The

4 Court denied, without prejudice to reconsideration, plaintiff’s request for a Vaughn index and instead

5 ordered defendant to issue an affidavit setting forth its basis for any withholdings. In total, defendant

6 released 509 documents in full or in part and withheld fourteen pages in full. On February 5, 2008,

7 defendant moved for summary judgment. Plaintiff initially objected to some of defendant’s

8 withholdings, but later the parties voluntarily dismissed the action, and the Court never ruled on the

9 summary judgment motion.

10

On April 11, 2008, plaintiff filed a motion for an award of attorney’s fees and costs pursuant to

11 FOIA, 5 U.S.C. § 552(a)(4)(E). Plaintiff seeks $68,205.00 in attorney’s fees and $731.97 in costs, for

12 a total of $68,936.97. Defendant argues that plaintiff’s motion should be denied because plaintiff is not

13 entitled to an award. However, defendant also argues that if the motion is granted, plaintiff’s request

14 should be reduced to $9,979.31, based on a number of factors.

15

16

LEGAL STANDARD

17

FOIA provides in relevant part that “[t]he court may assess against the United States reasonable

18 attorney fees and other litigation costs reasonably incurred in any case under this section in which the

19 complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(I). A complainant can substantially

20 prevail by receiving relief through a judicial order or through a voluntary or unilateral change in position

21 by the agency. 5 U.S.C. § 552(a)(4)(E)(ii). If a complainant has substantially prevailed on its FOIA

22 action, then it is eligible for an award of attorney’s fees and other litigation costs. See Church of

23 Scientology v. U.S. Postal Serv., 486, 489 (9th Cir. 1983) (citing Cox v. U.S. Dep’t of Justice, 601 F.2d
24 1, 6 (D.C. Cir. 1979)). However, “[a] determination of eligibility does not automatically entitle the
25 plaintiff to attorney’s fees.” Id. (emphasis added).
26 Once the Court determines that a complainant is eligible for attorney’s fees, the Court has the
27 “sound discretion” to determine whether the complainant is entitled to attorney’s fees. Church of
28

2

United States District Court For the Northern District of California

1 Scientology, 700 F.2d at 492 (emphasis added). In exercising its discretion, the Court should balance

2 the following four factors to determine whether the complainant is entitled to attorney’s fees: (1) the

3 public benefit; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest

4 in the records sought; and (4) whether the agency had a reasonable basis in law for withholding the

5 records. Id. However, the Court also may consider “whatever factors it deems relevant in determining

6 whether an award of attorney fees is appropriate.” Exner v. FBI, 443 F. Supp. 1349, 1352 (S.D. Cal.

7 1978).

8

If the Court determines that a complainant is both eligible for and entitled to attorney’s fees, the

9 next step is to determine the amount to which complainant is entitled. The Court may assess the

10 reasonableness of a lodestar figure presented by the complainant and adjust the figure accordingly.

11 Long v. U.S. Internal Revenue Serv., 932 F.2d 1309, 1313-14 (9th Cir. 1991) (stating that if the number

12 of hours expended and the hourly fee are reasonable, there is a “strong presumption” that the lodestar

13 figure is reasonable).

14

15

DISCUSSION

16

Plaintiff contends that it is eligible for and entitled to attorney’s fees and court costs for its action

17 against defendant. Defendant concedes that plaintiff is eligible for an award in light of the relief

18 plaintiff obtained from the Court’s preliminary injunction order, but argues that plaintiff is not entitled

19 to relief based on the facts and circumstances of the case. Defendant’s Opposition at 4. Defendant also

20 argues that plaintiff’s lodestar figure is unreasonable, and that if the Court finds that plaintiff is entitled

21 to an award of attorney’s fees and costs, the Court should use the Laffey matrix to determine a

22 reasonable award. Finally, defendant sets forth several reasons that any award should be reduced. For

23 the following reasons, the Court holds that plaintiff is eligible for and entitled to an award of $52,271.97 24 in attorney’s fees and other litigation costs, rather than the $68,936.97 requested by plaintiff. 25

26 I. Eligibility

27

Defendant concedes that plaintiff is eligible for an award of attorney’s fees and costs under 5

28 U.S.C. § 552. Defendant’s Opposition at 4. To be eligible for an award of attorney’s fees and costs,

3

United States District Court For the Northern District of California

1 plaintiff must have substantially prevailed against defendant. To be a prevailing party, plaintiff must
2 have received relief by a court. Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and
3 Human Res., 532 U.S. 598, 598 (2001). In securing a preliminary injunction against defendant, plaintiff
4 has obtained “the ‘judicial imprimatur’ necessary to satisfy Buckhannon.” Watson v. County of
5 Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002).
6
7 II. Entitlement
8 Defendant argues that plaintiff is not entitled to an award of attorney’s fees. “A determination
9 of eligibility does not automatically entitle the plaintiff to attorney’s fees.” Church of Scientology, 700
10 F.2d at 489. The determination of entitlement is left to the discretion of the Court. Id. at 492. To
11 determine whether plaintiff is entitled to attorney’s fees, the Court considers the benefit to the public
12 deriving from the case, the commercial benefit to the complainant, the nature of complainant’s interest
13 in the federal records sought, and whether the government has a reasonable basis for withholding the
14 record sought. See, e.g., id.; Republic of New Afrika (RNA) v. FBI, 645 F. Supp. 117 (D.D.C. 1986).
15 In weighing the four factors, the Court finds that plaintiff is entitled to an award of attorney’s fees and
16 costs.
17
18 A. Benefit to the public
19 Defendant contends that the public benefit derived from the Court’s order “was marginal, at
20 best.” Defendant’s Opposition at 5. However, defendant acknowledged that plaintiff sought to
21 disseminate the requested information to inform public debate over the FISA amendments that Congress
22 was actively considering. November 27, 2007 Order at 9. Upon defendant’s release of the requested
23 documents, plaintiff immediately posted the requested information on its website for public access.
24 Plaintiff also created press releases for public access. Hofmann Decl. Exhs. A & B. At least three
25 media outlets reported on the documents, including a blog that members of the public used for
26 discussion. Hofmann Decl. Exhs. C, D, & E. Thus, it is likely that the preliminary injunction added
27
28
4

United States District Court For the Northern District of California

1 to “the fund of information that citizens may use in making vital political choices.” Blue v. Bureau of

2 Prisons, 570 F.2d 529, 534 (5th Cir. 1978).

3

Defendant also argues that it would have released the same documents twenty-one days later

4 without judicial relief. However, as the Court recognized in its order granting relief, there was a

5 significant degree of urgency to plaintiff’s request. November 27, 2007 Order at 10. Furthermore,

6 defendant had not proposed a processing date until plaintiff filed its original motion, and defendant was

7 under no obligation to produce anything by a set date until the Court ordered a preliminary injunction.

8 Thus, the Court finds that this first factor weighs in favor of an award of fees.

9

10

B. The nature of plaintiff’s interests

11

The Ninth Circuit has considered the second and third criteria – the degree of commercial

12 interest and the nature of complainant’s interest in the records sought – jointly in determining whether

13 a plaintiff is eligible for attorney’s fees. See, e.g., Church of Scientology, 700 F.2d at 494. Defendant

14 contends that plaintiff had a strong commercial and private interest in bringing its claims against

15 defendant. Defendant argues that plaintiff sought to further its own lobbying and collateral litigation

16 interests in its role in cases such as Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006). Defendant

17 also argues that plaintiff used FOIA to access defendant’s communications “regarding legislative

18 proposals that have the potential to scuttle [plaintiff ’s] class action lawsuits.” Defendant’s Opposition

19 at 9. However, in cases such as Hepting, plaintiff represents clients or classes of clients, and not itself.

20 Thus, plaintiff is neither seeking damages for itself, nor profiting commercially in such cases. In fact,

21 as a nonprofit organization, plaintiff is the sort of requester that Congress intended to recover attorney’s

22 fees under FOIA. See Church of Scientology, 700 F.2d at 494 (“[W]here plaintiff is . . . a nonprofit

23 public interest group, an award of attorney’s fees furthers the FOIA policy of expanding access to

24 government information.”).

25

To boost its argument regarding plaintiff ’s private or commercial interests, defendant cites to

26 RNA, 645 F. Supp. 117, where the court found that the plaintiff was “not simply acting as a nonprofit,

27 public interest group” when it brought its FOIA suit against the FBI, id. at 121. However, RNA’s action

28 is easily distinguishable from the current case. First, the RNA court found little or no public benefit

5

United States District Court For the Northern District of California

1 resulted from RNA’s legal action under FOIA, id. at 120-21, and RNA conceded that it had not made

2 its discoveries public, id. at 121. Moreover, RNA admitted “to using information from its FOIA action

3 in [its] suit for damages,” and it conceded that one of its purposes in its FOIA action was to “exonerate

4 certain of its members from criminal prosecution.” Id. Plaintiff has not made such concessions.

5 Instead, plaintiff has shown that a public benefit resulted from its actions, and there is no evidence that

6 plaintiff is seeking damages for a private or commercial interest.

7

8

C. Defendant’s explanation for not releasing the documents sooner

9

Finally, the fourth factor examines whether the agency had a reasonable explanation for

10 withholding the requested records. Church of Scientology, 700 F.2d at 492. Defendant argues that it

11 granted plaintiff’s request to expedite processing of the requested documents, and moved plaintiff’s

12 request in front of its processing queue. Defendant claims that it “worked diligently to release

13 responsive records to plaintiff ‘as soon as practicable,’” as required under FOIA. Defendant’s

14 Opposition at 10. However, defendant failed to provide specific information explaining why it needed

15 four months to process plaintiff ’s FOIA request. November 27, 2007 Order at 9.

16

Defendant further contends that its reasonableness is illustrated by the Court’s denial of

17 plaintiff’s motion for a Vaughn index and the unaltered interim production date. However, the interim

18 date was merely three days after the Court’s Nov, 27, 2007 ruling and any adjustment made by the Court

19 against defendant was unlikely. Although the Court denied plaintiff’s request for a Vaughn index of

20 withheld records, the Court did so without prejudice and ordered defendant to submit an affidavit to

21 establish a reasonable basis for withholding any documents. The Court also required defendant to

22 process plaintiff ’s request twenty-one days sooner than defendant had proposed, thus further indicating

23 that defendant had failed to establish a reasonable basis for its refusal to release the documents earlier.

24

In weighing the four factors set out in the FOIA Senate Report, the Court finds that plaintiff

25 sought undisclosed records from defendant in the interest of the public and that defendant failed to

26 establish a reasonable basis for withholding the requested documents. Therefore, plaintiff is entitled

27 to an award of attorney’s fees and costs pursuant to 5 U.S.C. § 552.

28

6

United States District Court For the Northern District of California

1 III. Attorney’s fees and costs

2

The Court has discretion in determining the reasonable amount of attorney’s fees and costs to

3 award plaintiff . Long, 932 F.2d at 1314 (finding that the Court may adjust the lodestar figure if “certain

4 factors relating to the nature an difficulty of the case . . . indicate that such an adjustment is necessary”).

5 There is a “strong presumption” that the lodestar figure is reasonable if the Court finds that the

6 submitted hours and rates are reasonable. Id. This Court finds that while plaintiff’s rates are reasonable,

7 plaintiff has not submitted a reasonable number of hours. Consequently, the Court reduces plaintiff’s

8 lodestar figure of attorney fees to $51,540.00.

9

10

11

A. Reasonableness of plaintiff’s lodestar figure

12

Plaintiff has calculated its lodestar figure using the following hourly rates of the four attorneys

13 who worked on this case: (1) Ms. Hofmann – $350 per hour for 2007 and $450 per hour for 2008, (2)

14 Mr. Sobel – $600 per hour for 2007 and $700 per hour for 2008, (3) Mr. Opsahl – $425 per hour in 2007

15 and $525 per hour in 2008, and (4) Ms. Granick – $500 per hour for 2007 and $600 for 2008. The

16 burden is on plaintiff to produce satisfactory evidence that its requested rates represent “those prevailing

17 in the community for similar services by lawyers of reasonably comparable skill, experience and

18 reputation.” Navarro v. Gen. Nutrition Corp., 2005 WL 2333803, *7 (N.D. Cal. Sept. 22, 2005) (citing

19 Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987)). Each of the four attorneys’

20 declarations state that their rates “are well within the prevailing hourly rate in the San Francisco Bay

21 Area for lawyers of comparable education, expertise, and experience who handle matters of the type

22 involved in this litigation.” Sobel Decl. at ¶ 5; Granick Decl. at ¶ 5; Opsahl Decl. at ¶ 6; Hofmann Decl.

23 at ¶ 5. Plaintiff also presented a supplemental declaration of a San Francisco attorney, who states that

24 the hourly rates that plaintiff asserted “appear to be comparable to the hourly rates used by our firm .

25 . . in connection with our state [FOIA] work.” Steele Decl. at ¶ 10. The Court finds that plaintiff has

26 set forth satisfactory evidence that the 2007 rates are reasonable, though not that the 2008 increased

27 rates are reasonable. Therefore, the Court will use the 2007 rates in calculating the lodestar figure.

28

7

United States District Court For the Northern District of California

1

As for the hours expended, the Court finds plaintiff’s requested hours high in light of the nature

2 of this litigation and the level of skill required. The Court finds it appropriate to reduce the time the

3 attorneys spent on the complaint, the preliminary injunction, and the reply brief, though not other tasks.

4 Plaintiff bills a total of 12.0 hours for drafting and reviewing its complaint. The Court finds this

5 unreasonable and will reduce Ms. Hofmann’s hours to 7.5 and Mr. Sobel’s hours to 2.0 for the time

6 spent on the complaint. The Court finds the 88.45 hours plaintiff bills for its motion for a preliminary

7 injunction and reply to be unreasonable. Accordingly, the Court will reduce Ms. Hofmann’s preliminary

8 injunction hours to 43.5, Mr. Sobel’s to 15.5, and Mr. Opsahl’s to 9.5. The Court also finds the 32.2

9 hours charged for plaintiff’s reply to defendant’s opposition to attorney fees to be unreasonable, and will

10 reduce Ms. Hofmann’s time working on the reply to 16.5 hours and Mr. Opsahl’s time to 7.1 hours.

11

The Court calculates the reasonable lodestar figure as follows:

12

Attorney Hours Compensated

13

Hofmann

86.75

14

Sobel

21.6

Hourly Rate $350 $600

Lodestar Figure $30,362.50 $12,960.00

15

Opsahl

17.1

16

Granick

1.9

$425 $500

$7,267.50 $950.00

17

Total Attorney’s Fees: $51,540.00

18

19

B. Defendant’s request to reduce plaintiff’s award

20

Defendant argues that plaintiff ’s award should be reduced for a number of reasons. First,

21 defendant argues that the award should be reduced, “commensurate with plaintiff’s limited degree of

22 success on its motion for preliminary injunction.” Defendant’s Opposition at 19. As stated above,

23 plaintiff substantially prevailed in its preliminary injunction, and the preliminary injunction added to

24 “the fund of information that citizens may use in making vital political choices.” Blue, 570 F.2d at 534.

25 Without the preliminary injunction, defendant was under no obligation to release the documents by

26 December 10, 2007.

27

Defendant also argues that plaintiff used improper quarter-hour and block billing. However,

28 there is no evidence that plaintiff’s use of quarter-hour increments posed a threat of over-billing. See,

8

United States District Court For the Northern District of California

1 e.g., Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007) (finding that quarter-hour billing

2 resulted in excessive billing when “counsel billed a minimum of 15 minutes for numerous phone calls

3 and e-mails that likely took a fraction of the time”). In addition, block billing may be appropriate when

4 the tasks listed in a block are related. See, e.g., Oberdorfer v. Glickman, 2001 WL 34045732, *5 (D.

5 Or. Sept. 14, 2001) (finding that a 3.25-hour entry that listed three tasks does not create a block-billing

6 problem because the three tasks relate to a single motion). In this case, while Ms. Hofmann’s time

7 entries sometimes include discrete tasks, the tasks in a given block are related. See Hofmann Decl. at

8 ¶ 10. The Court does not find it appropriate to reduce plaintiff’s award for quarter-hour or block billing.

9

10

11

C. Other litigation costs

12

The Court finds it reasonable to award plaintiff its requested costs for this litigation in the

13 amount of $731.97. When added to the $51,540.00 in attorney’s fees, this results in a total award of

14 $52,271.97 for plaintiff.

15

16

CONCLUSION

17

For the foregoing reasons and for good cause shown, the Court hereby GRANTS IN PART

18 plaintiff’s motion for attorney’s fees and costs [Docket No. 48].

19

20

IT IS SO ORDERED.

21

22 Dated: June 4, 2008
23
24

_______________________________ SUSAN ILLSTON United States District Judge

25

26

27

28

9

 
 Case: 3:07-cv-5278 As of: 09/18/2016 07:59 AM PDT 1 of 6
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:07−cv−05278−SI

Electronic Frontier Foundation v. Office of the Director of National Intelligence Assigned to: Hon. Susan Illston Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/17/2007 Date Terminated: 03/05/2008 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Electronic Frontier Foundation

represented by Marcia Clare Hofmann Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: marcia@eff.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L. Sobel Electronic Frontier Foundation 1875 Connecticut Avenue, N.W. Suite 650 Washington, DC 20009 415−436−9333x202 Fax: 415−436−9993 Email: sobel@eff.org ATTORNEY TO BE NOTICED

V.
Defendant
Office of the Director of National Intelligence

represented by Andrew Irwin Warden U.S. Department of Justice, Civil Division 20 Massachusetts Ave., NW Room 6120 Washington, DC 20530 202−616−5084 Fax: 202−616−8460 Email: andrew.warden@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/17/2007
10/17/2007 10/17/2007

# Docket Text
1 COMPLAINT (summons issued) against Office of the Director of National Intelligence (Filing fee $ 350, receipt number 34611011567). Filed by Electronic Frontier Foundation. (slh, COURT STAFF) (Filed on 10/17/2007) Additional attachment(s) added on 11/1/2007 (ys, COURT STAFF). (Entered: 10/18/2007)
2 Certificate of Interested Entities or Persons by Electronic Frontier Foundation. (slh, COURT STAFF) (Filed on 10/17/2007) Additional attachment(s) added on 11/1/2007 (ys, COURT STAFF). (Entered: 10/18/2007)
3 ADR SCHEDULING ORDER: Case Management Statement due by 1/16/2008. Case Management Conference set for 1/23/2008 01:30 AM. (Attachments: # 1 EMC Standing Order; # 2 Case Management Standing Order)(slh, COURT STAFF) (Filed on 10/17/2007) (Entered: 10/18/2007)

Case: 3:07-cv-5278 As of: 09/18/2016 07:59 AM PDT 2 of 6

10/17/2007 10/26/2007 10/29/2007 10/29/2007 10/29/2007
10/29/2007 10/29/2007 10/29/2007
10/29/2007
10/29/2007
10/29/2007 10/30/2007 10/30/2007 10/30/2007 10/30/2007 10/31/2007
11/01/2007

CASE DESIGNATED for Electronic Filing. (slh, COURT STAFF) (Filed on 10/17/2007) (Entered: 10/18/2007)
5 MOTION of David Sobel for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611011876) filed by Electronic Frontier Foundation. (slh, COURT STAFF) (Filed on 10/26/2007) (Entered: 10/29/2007)
4 CONSENT to Proceed Before a US Magistrate Judge by Electronic Frontier Foundation.. (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
6 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
7 Declaration of Marcia Hofmann in Support of 6 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit A−D# 2 Exhibit E−H# 3 Exhibit I# 4 Exhibit J−L# 5 Exhibit M−P)(Related document(s) 6 ) (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
8 Proposed Order re 6 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
9 MOTION to Shorten Time For Hearing on Plaintiffs Motion for Preliminary Injunction filed by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
10 MEMORANDUM in Support re 9 MOTION to Shorten Time For Hearing on Plaintiffs Motion for Preliminary Injunction filed byElectronic Frontier Foundation. (Related document(s) 9 ) (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
11 Declaration of Marcia Hofmann in Support of 9 MOTION to Shorten Time For Hearing on Plaintiffs Motion for Preliminary Injunction filed byElectronic Frontier Foundation. (Related document(s) 9 ) (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
12 Declaration of Marcia Hofmann in Support of 9 MOTION to Shorten Time For Hearing on Plaintiffs Motion for Preliminary Injunction :Proof of Service Declaration filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Related document(s) 9 ) (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
13 Proposed Order re 9 MOTION to Shorten Time For Hearing on Plaintiffs Motion for Preliminary Injunction by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/29/2007) (Entered: 10/29/2007)
14 NOTICE of Appearance by Andrew Irwin Warden (Warden, Andrew) (Filed on 10/30/2007) (Entered: 10/30/2007)
15 Declination to Proceed Before a U.S. Magistrate Judge by Office of the Director of National Intelligence. (Warden, Andrew) (Filed on 10/30/2007) (Entered: 10/30/2007)
16 ORDER by Judge Edward M. Chen granting 5 Motion for Pro Hac Vice (bpf, COURT STAFF) (Filed on 10/30/2007) (Entered: 10/30/2007)
17 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (bpf, COURT STAFF) (Filed on 10/30/2007) (Entered: 10/30/2007)
18 ORDER REASSIGNING CASE. Case reassigned to Judge Susan Illston for all further proceedings. Judge Edward M. Chen no longer assigned to the case.. Signed by Executive Committee on 10/31/07. (as, COURT STAFF) (Filed on 10/31/2007) (Entered: 10/31/2007)
19 STIPULATION re 9 MOTION to Shorten Time For Hearing on Plaintiffs Motion for Preliminary Injunction by Office of the Director of National Intelligence. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 11/1/2007) (Entered: 11/01/2007)

Case: 3:07-cv-5278 As of: 09/18/2016 07:59 AM PDT 3 of 6

11/06/2007 11/06/2007 11/06/2007
11/06/2007 11/09/2007
11/16/2007 11/16/2007
11/26/2007 11/27/2007 01/04/2008 01/04/2008 01/04/2008 01/07/2008
01/08/2008 01/16/2008
01/17/2008 01/22/2008 01/29/2008

20 CLERK'S NOTICE Case Management Conference set for 1/25/2008 02:00 PM. (Attachments: # 1) (ts, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/06/2007)
21 ORDER by Judge Illston finding as moot 9 Motion to Shorten Time ; setting motion for prelim. injunction on 11/30/07 @ 9:00 a.m. (ts, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/06/2007)
Set/Reset Deadlines as to 6 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction. Motion Hearing set for 11/30/2007 09:00 AM. (ys, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/07/2007)
Set Deadlines/Hearings: Case Management Conference set for 1/25/2008 02:00 PM. (ys, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/07/2007)
22 Memorandum in Opposition re 6 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byOffice of the Director of National Intelligence. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Proposed Order)(Warden, Andrew) (Filed on 11/9/2007) (Entered: 11/09/2007)
23 Reply Memorandum in Support of 6 Motion for Preliminary Injunction filed byElectronic Frontier Foundation. (Sobel, David) (Filed on 11/16/2007) Modified on 11/19/2007 (ys, COURT STAFF). (Entered: 11/16/2007)
24 Declaration of David L. Sobel in Support of 23 Reply Memorandum in Support of Motion for Preliminary Injunction filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 23 ) (Sobel, David) (Filed on 11/16/2007) (Entered: 11/16/2007)
25 ANSWER to Complaint byOffice of the Director of National Intelligence. (Warden, Andrew) (Filed on 11/26/2007) (Entered: 11/26/2007)
26 ORDER GRANTING IN PART AND DENYING IN PART 6 PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 11/27/2007) (Entered: 11/27/2007)
27 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options (Warden, Andrew) (Filed on 1/4/2008) (Entered: 01/04/2008)
28 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options (Hofmann, Marcia) (Filed on 1/4/2008) (Entered: 01/04/2008)
29 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Hofmann, Marcia) (Filed on 1/4/2008) (Entered: 01/04/2008)
30 MOTION to Appear by Telephone at Case Management Conference filed by Office of the Director of National Intelligence. Motion Hearing set for 1/25/2008 02:00 PM. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 1/7/2008) (Entered: 01/07/2008)
31 ORDER by Judge Illston granting 30 Motion to Appear by Telephone (ts, COURT STAFF) (Filed on 1/8/2008) (Entered: 01/08/2008)
32 JOINT CASE MANAGEMENT STATEMENT filed by Office of the Director of National Intelligence. (Attachments: # 1 Proposed Order Establishing Summary Judgment Briefing Schedule)(Warden, Andrew) (Filed on 1/16/2008) (Entered: 01/16/2008)
33 ADR Clerks Notice Setting ADR Phone Conference on 1/22/08 at 2:00 p.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 1/17/2008) (Entered: 01/17/2008)
ADR Remark: ADR Phone Conference conducted on 1/22/08 by HAH. (tjs, COURT STAFF) (Filed on 1/22/2008) (Entered: 01/22/2008)
34 SCHEDULING ORDER. Signed by Judge Illston on 1/25/08. (ts, COURT STAFF) (Filed on 1/29/2008) (Entered: 01/29/2008)

Case: 3:07-cv-5278 As of: 09/18/2016 07:59 AM PDT 4 of 6

01/29/2008 02/05/2008 02/05/2008 02/13/2008 02/14/2008 02/14/2008 02/21/2008 02/22/2008 02/27/2008 02/28/2008 03/04/2008 03/05/2008 03/05/2008
04/01/2008 04/11/2008
04/11/2008

35 Minute Entry: Initial Case Management Conference held on 1/25/2008 before Illston (Date Filed: 1/29/2008). continued to 3/7/08 for motions () (ts, COURT STAFF) (Date Filed: 1/29/2008) (Entered: 01/29/2008)
36 MOTION for Summary Judgment filed by Office of the Director of National Intelligence. Motion Hearing set for 3/7/2008 09:00 AM. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 2/5/2008) (Entered: 02/05/2008)
37 Memorandum of Points and Authorities in support of re 36 MOTION for Summary Judgment filed byOffice of the Director of National Intelligence. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Related document(s) 36 ) (Warden, Andrew) (Filed on 2/5/2008) Modified on 2/6/2008 (ys, COURT STAFF). (Entered: 02/05/2008)
38 STIPULATION Re: Extension of Briefing Schedule For Motion For Summary Judgment and Proposed Order by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 2/13/2008) (Entered: 02/13/2008)
39 ORDER continuing motion to 3/21/08. Signed by Judge Illston on 2/14/08. (ts, COURT STAFF) (Filed on 2/14/2008) (Entered: 02/14/2008)
Set/Reset Deadlines as to 36 MOTION for Summary Judgment. Motion Hearing set for 3/21/2008 09:00 AM. (ys, COURT STAFF) (Filed on 2/14/2008) (Entered: 02/19/2008)
40 MOTION to Relate Case 08−1023−EDL filed by Electronic Frontier Foundation. (Attachments: # 1 Declaration of Marcia Hofmann, # 2 Proposed Order)(Hofmann, Marcia) (Filed on 2/21/2008) Modified on 2/22/2008 (ys, COURT STAFF). (Entered: 02/21/2008)
41 STIPULATION Re: Motion for Summary Judgment by Electronic Frontier Foundation. (Attachments: # 1 Proposed Order)(Hofmann, Marcia) (Filed on 2/22/2008) (Entered: 02/22/2008)
42 Minute Entry: Telephone Conference (Date Filed: 2/27/2008). The Court will not sign the recently submitted stipulation re: summary judgment.Counsel will be submitting a Rule 41 dismissal.() (ts, COURT STAFF) (Date Filed: 2/27/2008) (Entered: 02/27/2008)
43 Memorandum in Opposition re 40 MOTION to Relate Case filed byOffice of the Director of National Intelligence. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 2/28/2008) (Entered: 02/28/2008)
44 STIPULATION Of Dismissal by Office of the Director of National Intelligence. (Warden, Andrew) (Filed on 3/4/2008) (Entered: 03/04/2008)
45 ORDER by Judge Illston denying 40 Motion to Relate Case (ts, COURT STAFF) (Filed on 3/5/2008) (Entered: 03/05/2008)
46 ORDER DISMISSING CASE. EFF will move for attorney's fees no later than 4/11/08. ODNI will oppose EFF's motion for attorney's fees no later than 4/25/08. EFF will reply to ODNI's opposition no later than 5/2/08. The Court will hear the motion for attorney's fees on 5/16/08. Signed by Judge Illston on 3/5/08. (ts, COURT STAFF) (Filed on 3/5/2008) (Entered: 03/05/2008)
47 STIPULATION Extending Hearing Date And Briefing Schedule For Motion For Attorney's Fees by Office of the Director of National Intelligence. (Warden, Andrew) (Filed on 4/1/2008) (Entered: 04/01/2008)
48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed by Electronic Frontier Foundation. Motion Hearing set for 5/16/2008 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Hofmann, Marcia) (Filed on 4/11/2008) (Entered: 04/11/2008)
49 Declaration of Marcia Hofmann in Support of 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit A−F)(Related document(s) 48 ) (Hofmann, Marcia) (Filed on 4/11/2008) (Entered: 04/11/2008)

Case: 3:07-cv-5278 As of: 09/18/2016 07:59 AM PDT 5 of 6

04/11/2008 04/11/2008 04/11/2008 04/11/2008 04/15/2008 04/15/2008 04/15/2008 05/02/2008
05/09/2008 05/09/2008 05/09/2008 05/09/2008 05/09/2008

50 Declaration of David L. Sobel in Support of 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Related document(s) 48 ) (Hofmann, Marcia) (Filed on 4/11/2008) (Entered: 04/11/2008)
51 Declaration of Kurt Opsahl in Support of 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Related document(s) 48 ) (Hofmann, Marcia) (Filed on 4/11/2008) (Entered: 04/11/2008)
52 Declaration of Jennifer Stisa Granick in Support of 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Related document(s) 48 ) (Hofmann, Marcia) (Filed on 4/11/2008) (Entered: 04/11/2008)
53 Proposed Order re 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 4/11/2008) (Entered: 04/11/2008)
54 CLERK'S NOTICE Continuing Motion Hearing Motion Hearing set for 5/23/2008 09:00 AM. (ts, COURT STAFF) (Filed on 4/15/2008) (Entered: 04/15/2008)
55 ***ERRONEOUS ATTACHMENT***CLERK'S NOTICE Continuing Motion Hearing Motion Hearing set for 5/30/2008 09:00 AM. (ts, COURT STAFF) (Filed on 4/15/2008) Modified on 4/16/2008 (ys, COURT STAFF). (Entered: 04/15/2008)
Set/Reset Deadlines as to 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs. Motion Hearing set for 5/23/2008 09:00 AM. (ys, COURT STAFF) (Filed on 4/15/2008) (Entered: 04/16/2008)
56 Memorandum in Opposition re 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byOffice of the Director of National Intelligence. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Proposed Order)(Warden, Andrew) (Filed on 5/2/2008) (Entered: 05/02/2008)
57 RESPONSE in Support re 48 MOTION for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Hofmann, Marcia) (Filed on 5/9/2008) (Entered: 05/09/2008)
58 Declaration of David L. Sobel in Support of 57 Response in Support, Motion for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Related document(s) 57 ) (Hofmann, Marcia) (Filed on 5/9/2008) (Entered: 05/09/2008)
59 Declaration of Marcia Hofmann in Support of 57 Response in Support, Motion for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit A−B)(Related document(s) 57 ) (Hofmann, Marcia) (Filed on 5/9/2008) (Entered: 05/09/2008)
60 Declaration of Kurt Opsahl in Support of 57 Response in Support, Motion for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Related document(s) 57 ) (Hofmann, Marcia) (Filed on 5/9/2008) (Entered: 05/09/2008)
61 Declaration of Thomas H. Steele in Support of 57 Response in Support, Motion for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs filed byElectronic Frontier Foundation. (Related document(s) 57 ) (Hofmann, Marcia) (Filed on 5/9/2008) (Entered: 05/09/2008)

Case: 3:07-cv-5278 As of: 09/18/2016 07:59 AM PDT 6 of 6

05/09/2008 05/22/2008 06/04/2008

62 Proposed Order re 57 Response in Support, Motion for Attorney Fees and Costs; Memorandum of Points and Authorities in Support of Motion for an Award of Attorney's Fees and Costs by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 5/9/2008) (Entered: 05/09/2008)
63 ORDER VACATING ORAL ARGUMENT re 48 plaintiff's motion for attorney's fees and costs. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 5/22/2008) (Entered: 05/22/2008)
64 ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS re 48 . Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 6/4/2008) (Entered: 06/04/2008)