Case 1:13-cv-01961-KBJ Document 1 Filed 12/09/13 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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ELECTRONIC PRIVACY INFORMATION CENTER )

1718 Connecticut Ave., NW

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Suite 200

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Washington, DC 20009

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Plaintiff,

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v.

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) Civ. No. 1:13-cv-01961

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UNITED STATES DEPARTMENT OF JUSTICE

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Washington, DC 20530

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Defendant

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________________________________________________ )

COMPLAINT FOR INJUNCTIVE RELIEF

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), for injunctive and other appropriate relief, seeking the release of agency records requested by the Electronic Privacy Information Center (“EPIC”) from the National Security Division (“NSD”) of the U.S. Department of Justice (“DOJ”).
2. This lawsuit challenges the failure of DOJ to disclose documents in response to EPIC’s October 3, 2013, Freedom of Information Act request (“EPIC’s FOIA Request”). EPIC’s FOIA Request sought records regarding the semiannual reports on the use of pen registers and trap and trace devices for surveillance. EPIC has exhausted its administrative remedies. EPIC asks the Court to order immediate disclosure of all responsive records.

	  

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Jurisdiction and Venue 3. This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(A)(vii), 5 U.S.C. § 552(a)(4)(B), and 5 U.S.C. § 552(a)(6)(C)(i) (2012). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (2013). Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B).
Parties 4. Plaintiff EPIC is a public interest research organization incorporated as a not-forprofit corporation in Washington, D.C. EPIC conducts oversight of government activities and policies and analyzes their impact on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports, and a bi-weekly electronic newsletter. EPIC also maintains a popular Internet site, http://epic.org, which contains extensive information on current privacy issues, including documents obtained from federal agencies under the FOIA. EPIC routinely and systematically disseminates information to the public through its website and other media outlets. This Court recognized EPIC’s role as a representative of the news media in EPIC v. Dep’t of Defense, 241 F. Supp. 2d. 5 (D.D.C. 2003). 5. Defendant DOJ is a federal agency within the meaning of 5 U.S.C. § 552(f)(1). NSD is a component of the DOJ, headquartered in Washington, D.C.
FACTS 6. The Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801 et seq., authorizes electronic surveillance of “foreign intelligence information” between “foreign powers” and “agents of foreign powers.” 7. The purpose of FISA is to allow the U.S. Intelligence Community to participate in foreign – not domestic - intelligence gathering. When the FISA was passed, the Senate noted that

	  

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“[t]his legislation is in large measure a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused.” S. Rep. No. 95-604(I) at 7 (1977), reprinted in 1978 U.S.C.A.A.N. 3904, 3908.
8. Under the Foreign Intelligence Surveillance Act (“FISA”), the government can apply for an order from the Foreign Intelligence Surveillance Court (“FISC”) authorizing the use of a Pen Register and/or Trap and Trace “to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”
9. A Pen Register is a device or process “which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.”
10. A Trap and Trace is a device or process “which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication.”
11. Pen Registers and/or Trap and Trace may be used for the collection of information about either telephone or Internet activity.
12. Among other things, the pen register and trap and trace provisions of the FISA were used between 2004 and 2011 to justify the bulk collection of U.S. person Internet metadata.
13. The FISA requires the Attorney General to make a semiannual report on the use of Pen Registers and Trap and Trace to the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Committees on the Judiciary of the House of Representatives and the Senate. The report must

	  

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include the number of applications granted and modified under the FISA, as well as the total number of installations approved and denied under emergency circumstances.
14. DOJ has never released these reports to the public. EPIC’s FOIA Request
15. Paragraphs 1-14 above are hereby incorporated by reference as if set forth fully herein.
16. On October 3, 2013, EPIC transmitted, via certified mail, a FOIA request to NSD seeking records regarding the semiannual reports on the use of pen registers and trap and trace devices for national security purposes (“EPIC’s FOIA Request”).
17. EPIC’s FOIA Request was delivered on October 7, 2013. 18. EPIC’s FOIA Request asked for three categories of agency records: (1) all reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843; (2) all information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices; (3) all records used in preparation of the above materials, including statistical data.” 19. In EPIC’s FOIA Request, EPIC also sought “News Media” fee status as a “representative of the news media” under 5 U.S.C. § 552(4)(A)(ii). 20. EPIC’s FOIA Request further sought waiver of all duplication fees in accordance with 5 U.S.C. § 552(4)(A), because disclosure of the records requested will contribute significantly to public understanding of the operations or activities of the government.

	  

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21. EPIC’s FOIA Request sought expedited processing because it was made by “a person primarily engaged in disseminating information…” and it pertains to a matter about which there is an “urgency to inform the public about an actual or alleged federal government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II) (2013); Al-Fayed v. CIA, 254 F.3d 300 (D.C. Cir. 2001). Specifically, EPIC noted, “[t]he public has an urgent need to obtain any information regarding the use of surveillance technologies for national security purposes to better understand the scope of authority the government possesses and how this authority is being employed in practice.”
22. EPIC received a letter from Arnetta Mallory, FOIA Coordinator at NSD, dated October 29, 2013. Ms. Mallory acknowledged receipt of EPIC’s FOIA Request. The letter assigned EPIC’s FOIA Request reference number FOIA/PA14-007.
23. EPIC received a second letter from Ms. Mallory, dated November 5, 2013 that granted EPIC’s request for expedited processing based on “a particular urgency to inform the public about an actual or alleged federal government activity.”
24. NSD’s November 5, 2013 letter also granted EPIC’s request for a waiver of processing fees.
25. While an agency is typically required to make a determination with respect to a FOIA request within twenty business days, a request granted expedited processing must be “process[ed] as soon as practicable.”
26. EPIC has received no further communications from NSD or DOJ pertaining to EPIC’s FOIA Request.
EPIC has Exhausted its Administrative Remedies 27. Paragraphs 1-26 above are hereby incorporated by reference as if set forth fully herein.

	  

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28. It has been 42 business days since EPIC’s FOIA Request was received by NSD and 22 business days since NSD granted EPIC’s request for expedited processing.
29. NSD has failed to respond to EPIC’s FOIA Request within the time period prescribed by 5 U.S.C. § 552(a)(6)(A)(ii) and (a)(6)(E)(iii) (2013).
30. NSD’s failure to respond within the statutory limit violates the FOIA. Count I
Violation of FOIA: Failure to Comply With Statutory Deadlines 31. Paragraphs 1-30 above are hereby incorporated by reference as if set forth fully herein. 32. As described above, Defendant DOJ’s failure to respond to EPIC’s Request violated the statutory deadline imposed by the FOIA set forth in 5 U.S.C. § 552 (a)(6)(A)(ii) and (a)(6)(E)(iii) (2013). 33. EPIC has exhausted the applicable administrative remedies with respect to EPIC’s FOIA Request. 5 U.S.C. § 552(a)(4)(B). 34. EPIC is entitled to injunctive relief compelling the immediate disclosure of the requested agency records.
Count II Violation of FOIA: Unlawful Withholding of Agency Records 35. Paragraphs 1-34 above are hereby incorporated by reference as if set forth fully herein. 36. As described above, DOJ has failed to comply with statutory deadlines and failed to make responsive records available to EPIC.

	  

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37. As a result of DOJ’s unlawful delay, EPIC and the public have been denied access to responsive agency records to which the parties are lawfully entitled under the FOIA, 5 U.S.C. § 552(a)(3)(A).
38. EPIC has exhausted the applicable administrative remedies with respect to EPIC’s FOIA Request. 5 U.S.C. § 552(a)(4)(B).
39. EPIC is entitled to injunctive relief compelling the release and disclosure of the requested agency records.
Requested Relief

WHEREFORE, Plaintiff prays that this Court:

A. order Defendant to promptly immediately process responsive agency records;

B. order Defendant to disclose all responsive agency records in their entirety and

make copies available to EPIC

C. award Plaintiff its costs and reasonable attorneys’ fees incurred in this action

pursuant to 5 U.S.C. § 552(a)(4)(E) (2010); and

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

Respectfully submitted,

MARC ROTENBERG, D.C. Bar # 422825 EXECUTIVE DIRECTOR ELECTRONIC PRIVACY INFORMATION CENTER

Dated: December 9, 2013

/s/ Amie L. Stepanovich Amie L. Stepanovich, D.C. Bar # 1011950 ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 (202) 483-1140 (telephone) (202) 483-1248 (facsimile)

	  

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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.

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Civil No. 13-cv-1961 (KBJ)

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MEMORANDUM OPINION In early October of 2013, plaintiff Electronic Privacy Information Center (“EPIC”) submitted a document request to defendant Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”) seeking records regarding a national security program that involves the United States government’s surreptitious use of certain devices to collect communications information. EPIC asked DOJ to expedite the processing of its FOIA request, which DOJ agreed to do. But after forty-two business days elapsed and DOJ had not responded to EPIC’s FOIA request, much less produced the requested records, EPIC filed the instant lawsuit along with a motion for a preliminary injunction, requesting that the Court compel DOJ to process its request immediately and provide responsive documents within 20 days of the Court’s order. Before this Court at present is EPIC’s preliminary injunction motion. EPIC argues that because DOJ did not respond to its FOIA request within the 20-day time frame that FOIA prescribes for non-expedited cases, DOJ is not in fact expediting EPIC’s document request, and EPIC is therefore entitled to a preliminary and permanent

injunction compelling DOJ to disclose the records forthwith. DOJ responds that EPIC is not entitled to immediate production of the records because the agency has complied with FOIA’s requirements for processing expedited requests—it has moved EPIC’s request ahead of all non-expedited requests in its FOIA queue and is working to process the request as soon as practicable, which is taking longer than 20 days.
This Court has considered the complaint, the parties’ briefs on the motion for a preliminary injunction, the arguments made at the preliminary injunction hearing, and the applicable law, and for the reasons explained below, the Court concludes that EPIC has failed to establish a likelihood of success on the merits of its argument that the organization is entitled to the injunctive relief it seeks. Moreover, EPIC has fallen short of demonstrating that it will suffer irreparable harm if this Court does not order DOJ to produce responsive records now, and the Court is not convinced that the balance of harms and public interest factors weigh in EPIC’s favor, particularly in light of the classified nature of the documents at issue. Consequently, the Court concludes that EPIC’s motion for a preliminary injunction must be DENIED.
I. BACKGROUND A. Facts Alleged In The Complaint EPIC is “a public interest research organization incorporated as a not-for-profit
corporation in Washington, D.C.” (Complaint for Injunctive Relief (“Compl.”), ECF No. 1, ¶ 4.) According to the complaint, EPIC performs the following work:
EPIC conducts oversight of government activities and policies and analyzes their impact on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports, and a bi-weekly electronic newsletter. EPIC also maintains a popular Internet site, http://epic.org, which contains extensive information on current privacy issues,
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including documents obtained from federal agencies under the FOIA. EPIC routinely and systematically disseminates information to the public through its website and other media outlets. Id.
On October 3, 2013, EPIC mailed a FOIA document request (“FOIA Request”) to
the National Security Division of DOJ (“NSD”) via certified mail, which the NSD’s
FOIA office officially received on October 18, 2013. (Id. ¶ 16; see also Mem. in
Support of P.’s Mot. for a Prelim. Inj. (“PI Mem.”), Ex. B, Letter from Arnetta Mallory
to Amie Stepanovich, dated Oct. 29, 2013 (“NSD Acknowledgement”), ECF No. 3-3.)
The FOIA Request explained that EPIC was seeking copies of reports that the Attorney
General had submitted to Congress pursuant to the Foreign Intelligence Surveillance
Act (“FISA”), 50 U.S.C. § 1846, for the past 12 years—reports that, according to EPIC,
summarize “all uses of pen registers and trap and trace devices obtained under the
FISA[,]” and “include the number of applications granted and the number of
applications modified under the FISA, as well as the total number of installations
approved and denied under emergency circumstances.” (PI Mem., Ex. A, Letter from Amie Stepanovich to Arnetta James, dated Oct. 3, 2013, ECF No. 3-2, at 3.)1 The FOIA
Request specified that EPIC was seeking “all records related to the Attorney General’s
required semiannual reports between 2001 and present” (id.), and in particular, the
following three categories of documents:
1 According to the Complaint, “[a] Pen Register is a device or process ‘which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted[,]’” and “[a] Trap and Trace is a device or process ‘which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication.’” (Compl. ¶¶ 9-10.) Under 50 U.S.C § 1846, the Attorney General is required to provide Congress with semiannual reports on the use of these devices, including the number of applications made for court orders approving use of such devices, and the number of orders granted, modified or denied.
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1. all reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843[;] 2. all information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices; 3. all records used in preparation of the above materials, including statistical data. (Compl. ¶ 18.) As part of the FOIA Request, EPIC asked DOJ to waive all duplication
fees pursuant to 5 U.S.C. § 552(a)(4)(A). (Id. ¶¶ 19-20.) EPIC also requested
expedited processing of the FOIA Request because EPIC is “‘primarily engaged in
disseminating information[]’” and its document request related to a matter about which
there is an “‘urgency to inform the public about an actual or alleged federal government
activity.’” (Id. ¶ 21 (quoting 5 U.S.C. § 552(a)(6)(E)(v)(II)).)
On October 29, 2013, seven business days after receiving the FOIA Request, the
NSD sent EPIC a letter acknowledging its receipt of the request. (Id. ¶ 22; see also
NSD Acknowledgement (noting that “[o]ur policy is to process FOIA requests on a
first-in, first-out basis[,]” and that “every effort will be made to respond to your request
as quickly as possible” but the “processing time will depend upon the complexity of the
request, whether it involves sensitive or voluminous records, and whether consultations
with other agencies or agency components are appropriate”).) The NSD followed up
with a second letter on November 5, 2013, which explained that the agency was
granting EPIC’s requests for a fee waiver and expedited processing. (Compl. ¶¶ 23-24;
see also PI Mem., Ex. C, Letter from Arnetta Mallory to Amie Stepanovich, dated Nov.
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5, 2013, ECF No. 3-4.) The November 5th letter was the last communication that EPIC
received from the NSD or DOJ regarding the FOIA Request before December 19, 2013,
which is the date on which EPIC filed the instant complaint. (Compl. ¶ 26.)
EPIC’s complaint contains two counts. Count I is captioned: “Violation of
FOIA: Failure to Comply with Statutory Deadlines,” and asserts that “DOJ’s failure to
respond to [the FOIA] Request violated the statutory deadline imposed by the FOIA set
forth in 5 U.S.C. § 552 (a)(6)(A)(ii) and (a)(6)(E)(iii) (2013).” (Id. ¶ 32.) Count II is
captioned: “Violation of FOIA: Unlawful Withholding of Agency Records”; that count
maintains that “EPIC and the public have been denied access to responsive agency
records to which the parties are lawfully entitled under the FOIA, 5 U.S.C.
§ 552(a)(3)(A).” (Id. ¶ 37.) The complaint states that each of these alleged violations
independently entitles EPIC “to injunctive relief compelling the immediate disclosure
of the requested agency records,” (id. ¶ 34; see also id. ¶ 39), and in its prayer for
relief, EPIC specifically requests that this Court:
A. order Defendant to promptly immediately [sic] process responsive agency records; B. order Defendant to disclose all responsive agency records in their entirety and make copies available to EPIC[;] C. award Plaintiff its costs and reasonable attorneys’ fees incurred in this action pursuant to 5 U.S.C. § 552(a)(4)(E) (2010); and E. [sic] grant such other relief as the Court may deem just and proper. (Id. at 7.) B. EPIC’s Motion For Preliminary Injunction At the same time that EPIC filed its complaint, EPIC also filed a separate motion
that requests “entry of a preliminary injunction to enjoin defendant [DOJ’s] unlawful 5

attempts to impede plaintiff’s efforts to obtain agency records under the [FOIA].” (P.’s Mot. for a Prelim. Inj. (“PI Motion”), ECF No. 3, at 1.) The injury alleged and the relief requested in EPIC’s preliminary injunction motion are coterminous with those set forth in the complaint. Specifically, the motion maintains that EPIC is statutorily entitled to have its FOIA Request processed within at least 20 days of the agency’s receipt of that request—a deadline that DOJ admittedly has not met—and thus EPIC’s “likelihood of prevailing on the merits is extremely high.” (PI Mem. at 8.) Additionally, EPIC asserts that it will suffer irreparable injury if this Court does not order DOJ to process its request expeditiously because “extraordinary public attention” is currently focused on the issue of government surveillance programs, and “time is of the essence” with respect to getting information that will inform the “current and ongoing” debate. (Id. at 10.) EPIC also argues that the balance of interests weighs in its favor because DOJ “cannot claim to be ‘burdened’ by a requirement that it comply with its statutory obligations” (id. at 14), and that “faithful adherence” to FOIA is in the public interest (id. at 15 (internal quotation marks and citation omitted).) And like the complaint itself, the motion for a preliminary injunction ultimately requests that this Court “direct DOJ to complete the processing of EPIC’s FOIA Request and [to] produce or identify all responsive records within 20 days of the issuance of the order EPIC now seeks.” (Id. at 16.)
Notably, the memorandum that EPIC has filed in support of the PI Motion indicates that the precipitating event for EPIC’s FOIA Request was The Guardian newspaper’s recent release of information regarding the existence, from 2004-2011, of a program under which the National Security Administration (“NSA”) secured approval
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from the Foreign Intelligence Surveillance Court (“FISA Court”) to use pen register and trap and trace devices to collect bulk e-mail and internet metadata. (PI Mem. at 2 (citing Glenn Greenwald & Spencer Ackerman, NSA Collected US Email Records in Bulk For More Than Two Years Under Obama, The Guardian (June 27, 2013)).) EPIC admits that the NSA discontinued this particular program in 2011 “for operational resource reasons[,]” and that “[t]here is no evidence that the program has been reinstituted since its cessation in 2011.” (Id. at 3 (internal quotation marks and citation omitted).) However, at the preliminary injunction hearing, EPIC’s counsel suggested that the organization’s interest in getting the requested reports and information stems from the possibility that the U.S. government may be conducting other, separate e-mail and internet metadata collection programs under the pen register/trap and trace authority that exists under sections 1842-43 of Title 50 of the U.S. Code.
II. PRELIMINARY INJUNCTION STANDARD A preliminary injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A party seeking a preliminary injunction “must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.” Id. at 20. In conducting an inquiry into these four factors, “[a] district court must ‘balance the strengths of the requesting party’s arguments in each of the four required areas.’ . . . If the showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak.” Chaplaincy of Full Gospel Churches v.
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England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“CFGC”) (quoting CityFed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)). However, “a movant
must demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Id.
(citation omitted).2
It is clear beyond cavil that two of the prongs of the four-factor preliminary
injunction test—likelihood of success and irreparable injury—are the most significant
aspects of the court’s inquiry because they relate directly to the purpose of a
preliminary injunction. “It is particularly important for the movant to demonstrate a
substantial likelihood of success on the merits,” because “absent a substantial indication
of likely success on the merits, there would be no justification for the [C]ourt’s
intrusion into the ordinary processes of administration and judicial review.” Navistar,
Inc. v. EPA., No. 11cv449, 2011 WL 3743732 (D.D.C. Aug. 25, 2011) (internal
quotation marks and citation omitted)). Furthermore, “the basis of injunctive relief in
the federal courts has always been irreparable harm and inadequacy of legal remedies,”
Sampson v. Murray, 415 U.S. 61, 88 (1974) (internal quotation marks and citation
omitted); indeed, a preliminary injunction entitles the movant to action before a ruling
2 This approach to analyzing the preliminary injunction factors is traditionally used in this Circuit and is often referred to as a “sliding scale.” The D.C. Circuit has recently suggested that this sliding scale approach may no longer be applicable after the Supreme Court’s decision in Winter, and that a more stringent test applies instead. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (likelihood of success on the merits and irreparable harm may be “independent, free-standing requirement[s] for a preliminary injunction” (internal quotations marks and citation omitted)); see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh & Henderson, JJ., concurring) (“[U]nder the Supreme Court’s precedents, a movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm, among other things.”). However, in the absence of a precedential ruling to this effect, this Court will apply the more lenient sliding scale standard to the injunction at issue here. Cf. Kingman Park Civic Ass’n v. Gray, No. 13cv-990, 2013 WL 3871444, at *3 (D.D.C. Jul. 29, 2013) (“[A]bsent . . . clear guidance from the Court of Appeals, the Court considers the most prudent course to bypass this unresolved issue and proceed to explain why a preliminary injunction is not appropriate under the ‘sliding scale’ framework. If a plaintiff cannot meet the less demanding ‘sliding scale’ standard, then it cannot satisfy the more stringent standard alluded to by the Court of Appeals.”).
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on the merits precisely because “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 2013).
Significantly, in this jurisdiction, it is also well established that “[t]he power to issue a preliminary injunction, especially a mandatory one, should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (internal quotation marks omitted). “[W]here an injunction is mandatory—that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act—the moving party must meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from the denial of the injunction.” Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997) (internal quotation marks and citations omitted), aff’d, 159 F.3d 636 (D.C. Cir. 1998); see also, e.g., In re Navy Chaplaincy, 516 F. Supp. 2d 119, 123 (D.D.C. 2007); Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001); Adair v. England, 217 F. Supp. 2d 1, 3 n. 6 (D.D.C. 2002). This higher standard for injunctive relief appears to apply in this case, given that EPIC is requesting a preliminary injunction order that requires DOJ to take action (i.e., to review and release responsive documents). Nevertheless, for the reasons explained infra, the Court concludes that a preliminary injunction is not warranted in this case even under the comparatively lesser standard that applies to typical (non-mandatory) preliminary injunctions.
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III. Analysis A. Likelihood of Success on the Merits EPIC’s argument regarding likelihood of success flows from its belief that DOJ’s
failure to respond to the FOIA Request within 20 days, as set forth in the FOIA statute, constitutes a per se violation of the law that entitles the requester to get the requested records immediately. (See PI Mem. at 9.) EPIC points to 5 U.S.C. § 552(a)(6)(A)(i), which does state that an agency shall “determine within 20 [business] days . . . after the receipt of [a FOIA] request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination[.]” But nothing in the FOIA statute establishes that an agency’s failure to comply with this 20-day deadline automatically results in the agency’s having to produce the requested documents without continued processing, as EPIC suggests. And the D.C. Circuit’s recent decision in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 711 F.3d 180 (D.C. Cir. 2013) (“CREW”), clearly establishes that no such result follows from the infraction that EPIC identifies.
In CREW, the D.C. Circuit first succinctly summarizes the statutory deadlines that apply with respect to an agency’s response to a FOIA request:
An agency usually has 20 working days to make a “determination” with adequate specificity, such that any withholding can be appealed administratively. 5 U.S.C. § 552(a)(6)(A)(i). An agency can extend that 20-workingday timeline to 30 working days if unusual circumstances delay the agency’s ability to search for, collect, examine, and consult about the responsive documents. Id. § 552(a)(6)(B).
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CREW, 711 F.3d at 189. The Court further explains that a timely “determination”
involves more than merely acknowledging receipt of the request and stating that the
agency will produce any non-exempt records that it may later locate:
Rather, in order to make a “determination” and thereby trigger the administrative exhaustion requirement, the agency must at least: (i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the “determination” is adverse.
Id. at 188. The CREW opinion also clarifies that the “determination” that is to be made
within the 20-day statutory window is distinct from the act of producing the requested
records:
To be clear, a “determination” does not require actual production of the records to the requester at the exact same time that the “determination” is communicated to the requester. Under the statutory scheme, a distinction exists between a “determination” and subsequent production. As to actual production, FOIA requires that the agency make the records “promptly available,” which depending on the circumstances typically would mean within days or a few weeks of a “determination,” not months or years. So, within 20 working days (or 30 working days in “unusual circumstances”), an agency must process a FOIA request and make a “determination.” At that point, the agency may still need some additional time to physically redact, duplicate, or assemble for production the documents that it has already gathered and decided to produce. The agency must do so and then produce the records “promptly.”
CREW, 711 F.3d at 188-89 (emphasis in original) (citing Spannaus v. DOJ, 824 F.2d
52, 59 n.7 (D.C. Cir. 1987), 5 U.S.C. § 552(a)(3)(A), (a)(6)(C)(i)).
Significantly for present purposes, CREW not only explains the timing and
substance of the required FOIA response, it also unequivocally addresses the
consequences that attach to an agency’s failure to make the required “determination”
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within the 20-day deadline. According to the D.C. Circuit, “[i]f the agency does not
adhere to FOIA’s explicit timelines, the ‘penalty’ is that the agency cannot rely on the
administrative exhaustion requirement to keep cases from getting into court.” CREW,
711 F.3d at 189 (emphasis added). Repeatedly referencing these exhaustion
consequences, CREW states that an agency has 20 working days to “make a
‘determination’ with adequate specificity, such that any withholding can be appealed
administratively.” Id.; see also id. at 188 (explaining what an agency must do in order
to “make a ‘determination’ and thereby trigger the administrative exhaustion
requirement”). Thus, far from EPIC’s reading of the FOIA to require an agency to
immediately hand over all of the requested documents as a result of its failure to meet
the deadline, CREW makes clear that the impact of blowing the 20-day deadline relates
only to the requester’s ability to get into court. See id. at 189 (“[T]he agency may
continue to process the request, and the court (if suit has been filed) will supervise the
agency’s ongoing progress, ensuring that the agency continues to exercise due diligence in processing the request.” (citing 5 U.S.C. § 552(a)(6)(C))).3
Properly understood and applied, then, CREW substantially decreases the
likelihood that EPIC will prevail on the merits of its argument that the NSD’s failure to
adhere to the 20-day deadline violates FOIA in a manner that entitles EPIC to a court
order granting it immediate access to the requested records. This is because, under
3 In reaching this conclusion, the D.C. Circuit interpreted § 552(a)(6)(C), which allows for a court to “retain jurisdiction and allow the agency additional time to complete its review of the records” when “exceptional circumstances exist,” as explained in Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1997) (quoting 5 U.S.C. §552(a)(6)(C)). The Open America Court held that “exceptional circumstances exist when the agency is deluged with a volume of requests for information vastly in excess of that anticipated by Congress, when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection (6)(A), and when the agency can show that it is exercising due diligence in processing the requests.” Id. at 611 (internal quotation marks and citation omitted).
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CREW, an agency’s response to a FOIA request generally involves two steps, only one of which implicates the 20-day statutory timeframe. First, an agency will gather and review documents and make a “determination,” which is a decision regarding the scope of the documents the agency intends to produce and withhold, and the reasons for withholding any documents. Id. at 188-89. By statute, the agency is required to communicate this determination to the requester (and mention the right to appeal) within 20 days of receipt of the request. 5 U.S.C. §552(a)(6)(A)(i). Then, after the determination has been made and communicated, the agency proceeds to the second step, which is to process the responsive documents and produce them to the requester “promptly.” CREW, 711 F.3d at 188-89. CREW also clearly recognizes that the 20-day determination deadline is not always practicable, and it explains what happens when that deadline is not met: in such a circumstance, the FOIA requester is deemed to have exhausted his administrative remedies and can proceed immediately to federal court, after which the agency “may continue to process the request,” but will do so under the court’s supervision. Id. at 189.
EPIC’s vigorous contention to the contrary—i.e., that the alleged statutory violation here, in and of itself, entitles it to immediate access to the requested records— relies almost exclusively on a 2006 district court opinion from this jurisdiction. In that case, Electronic Privacy Information Center v. Department of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006) (“EPIC I”), which also involved a tardy response to a FOIA request, the district judge granted EPIC’s motion for a preliminary injunction and set the same 20-day response and production schedule that EPIC seeks here.4
4 Notably, the district judge later modified this deadline based on classified affidavits that DOJ submitted regarding its processing capacity. See EPIC I, No. 06-cv-96, Order, ECF No. 18 (Mar. 24,
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EPIC I is distinguishable from the instant case for at least two reasons. First and foremost, the judge in EPIC I did not have the benefit of the D.C. Circuit’s decision in CREW, and in particular, its holding regarding the specific consequences that attach to an agency’s failure to meet the 20-day timeframe. Second, and significantly, the district judge in EPIC I relied on a “presumption of agency delay” that the judge believed had arisen simply and solely because DOJ had failed to respond to EPIC’s expedited FOIA request within 20 days. Id. at 39. DOJ had not presented any evidence regarding the impracticability of such a rapid response to the EPIC I court, id. at 40, and the judge was clear that the presumption of delay “is certainly rebuttable if the agency presents credible evidence that disclosure within such time period is truly not practicable.” Id. at 39. Here, in contrast to EPIC I, DOJ has submitted an uncontested declaration from Mark A. Bradley, the Director of the FOIA and Declassification Unit of the Office of Law and Policy in the NSD, which maintains that it is impracticable for the NSD to complete the processing EPIC’s FOIA Request within 20 days, in light of the 13 expedited FOIA requests the agency is already processing; the volume of classified material at issue; the need for agency staff to review the material to determine, first, if it remains properly classified, and second, whether the agency can segregate any non-classified material; and the competing national security obligations to which the same agency staffers who are responsible for gathering and reviewing documents responsive to the FOIA Request must attend. (See generally Decl. of Mark A. Bradley (“Bradley Decl.”), ECF No. 9-1.) Thus, even if a presumption of delay
2006) (extending certain processing deadlines and ordering that Vaughn indices need not be created at that time).
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exists—and in light of CREW this Court is doubtful that it does—no such presumption
even arguably arises on the facts of the instant case.5
Finally, it must be noted that the fact that EPIC here requested and received a
pledge from DOJ that the agency would expedite review of the FOIA Request does not
increase the odds of EPIC’s success on the merits of this matter. To be sure, while
agencies typically respond to FOIA requests on a “first-in/first-out” basis, an agency
can expedite its processing of a FOIA request when a requester shows a “compelling
need” for expedition, or in other circumstances that an agency establishes in its FOIA
regulations. See 5 U.S.C 552(a)(6).6 An agency must decide a request for expedited
processing within 10 days after receipt. Id. If the agency approves the request for
expedition, the particular FOIA request moves “to the front of the agency’s queue” and
the agency must process it “as soon as practicable.” Leadership Conference on Civil
Rights v. Gonzales, 404 F. Supp. 2d 246, 259-60 (D.D.C. 2005) (internal quotation
omitted); see also 5 U.S.C. §552(a)(6)(E)(iii) (“An agency shall process as soon as
5 The two other cases on which EPIC principally relies and which are closest to the facts in this case are also readily distinguished. In Washington Post v. Department of Homeland Security, 459 F. Supp. 2d 61 (D.D.C. 2006), the Court granted the Post’s request for a preliminary injunction requiring that the newspaper’s FOIA request be processed within 20 days. Id. at 64. The issue in that case was whether the documents at issue were agency records, and not whether processing within a 20-day time frame was practicable. Id. at 68. In Aguilera v. Federal Bureau of Investigation, 941 F. Supp. 144 (D.D.C. 1996), the FBI had refused a request for expedition, and because the documents at issue were key evidence in an evidentiary hearing that a trial court had scheduled for the near future regarding the requester’s conviction for murder, the Court entered a preliminary injunction requiring the FBI to expedite the processing of plaintiff’s FOIA request. Id. at 147, 151-52; see also Cleaver v. Kelley, 427 F. Supp. 80, 81-82 (D.D.C. 1976) (granting a preliminary injunction and ordering expedited processing of plaintiff’s FOIA request where plaintiff had been indicted for attempted murder and assault, and trial was scheduled to begin in a month). As discussed infra, EPIC has failed to establish that it is facing a similar looming deadline. 6 A “compelling need” exists if either: (1) failure to obtain expedited processing would pose an “imminent threat to the life or physical safety of an individual”; or (2) the requester is “primarily engaged in disseminating information” and shows an “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v).
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practicable any request for records to which the agency has granted expedited processing under this subparagraph.”).
Here, DOJ has represented that EPIC’s FOIA Request was moved to the head of the line of regular FOIA requests that the NSD is handling, and that EPIC’s FOIA Request is now in a queue of 13 other “expedited” document requests. (Bradley Decl. ¶ 4.) The DOJ affiant also explains that EPIC’S FOIA Request—like many of the others that the NSD handles—involves classified national security information, and that it takes longer to process such information. (Id. ¶¶ 7-8.) Setting aside EPIC’s utter failure to explain why, in this era of diminished government resources, its own “expedited” request should take precedence over any of the other “expedited” requests pending before the NSD (many of which purportedly arrived prior to EPIC’s), EPIC has not presented any evidence whatsoever that would either (1) cast doubt on DOJ’s representations about the current status of EPIC’s FOIA Request relative to all others, or (2) tend to establish that DOJ has misrepresented the degree of its diligence and that it is not, in fact, working to make a determination on EPIC’s FOIA Request “as soon as practicable.” Cf. ACLU v. Dep’t of Defense, 339 F. Supp. 2d 501, 502-04 (S.D.N.Y. 2004) (finding that government was improperly proceeding at a “glacial pace” and ordering production of documents within 30 days where “eleven months [after the FOIA request was made], with small exception, no documents have been produced by defendant; no documents have been identified; no exemptions have been claimed; and no objections have been stated”).
Instead, with respect to the merits of its claim, EPIC relies solely on the following tautological argument: DOJ has agreed to subject EPIC’s FOIA Request to
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“expedited” review; the FOIA statute states that an agency must make a determination regarding (non-expedited) FOIA requests within 20 days; more than 20 days have elapsed without a determination on EPIC’s FOIA Request; therefore, DOJ must not have expedited EPIC’s FOIA Request. (PI Mem. at 9.) The heart of this argument is EPIC’s insistence that, pursuant to the statutory text, an agency must make a determination regarding a typical, non-expedited FOIA request within 20 days or suffer the consequence of a court order requiring production of the documents. But as this Court has already explained, the D.C. Circuit’s CREW decision establishes otherwise.
B. Irreparable Harm Having concluded that EPIC is not likely to succeed on the merits, this Court turns to an evaluation of EPIC’s assertions of irreparable harm in the absence of an injunction. It is not easy to define the concept of irreparable harm, but it is undisputed that “[t]he irreparable injury requirement erects a very high bar for a movant.” Coalition for Common Sense in Gov’t Procurement v. United States, 576 F. Supp. 2d 162, 168 (D.D.C. 2008). “[S]everal well-known and indisputable principles” guide the inquiry regarding irreparable injury. Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). At a minimum, the party seeking injunctive relief must demonstrate that the claimed injury is “both certain and great” and that the alleged harm is “actual and not theoretical.” Id.7 Moreover, because “the court must decide whether the harm will in fact occur[,]” a party seeking injunctive relief must “substantiate the claim [of] irreparable injury” and “must show that the alleged harm will directly result
7 As noted in Section II, supra, because EPIC seeks a mandatory preliminary injunction in this case, the applicable harm requirement exceeds “great” harm, and includes the need to demonstrate “very serious damage in the absence of an injunction.” Columbia Hosp. for Women Found., 15 F. Supp. 2d at 4. Nevertheless, for the reasons discussed in this section, this Court concludes that EPIC has failed to satisfy even the “great” harm standard.
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from the action which the movant seeks to enjoin.” Id. (emphasis in original). Furthermore, because “[i]njunctive relief will not be granted against something merely feared as liable to occur at some indefinite time,” the movant “must show that [t]he injury complained of [is] of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Id. (internal quotation marks omitted) (second and third alteration in original). And the certain and immediate harm that a movant alleges must also be truly irreparable in the sense that it is “beyond remediation.” CFGC, 454 F.3d at 297.
EPIC has not established that it will suffer irreparable harm if DOJ does not respond to its FOIA request and produce responsive documents immediately (i.e., within 20 days). In this regard, EPIC first asserts that “[t]he nature of the right that EPIC seeks to vindicate in this action—expedited processing—depends on timeliness,” (PI Mem. at 9), and that “[u]nless DOJ is ordered to process EPIC’s FOIA Request immediately, EPIC’s right to expedition under the FOIA will be irretrievably lost,” (id. at 10). While it is true that some courts have granted preliminary injunctions where “time is of the essence,” (id. at 14), surely EPIC’s own subjective view of what qualifies as “timely” processing is not, and cannot be, the standard that governs this Court’s evaluation of irreparable harm, and EPIC offers nothing more than a bald assertion that DOJ is obviously not processing its FOIA Request in a timely fashion. By contrast, DOJ has submitted uncontroverted evidence that the agency has, in fact, expedited EPIC’s FOIA Request, even though it will not be able to complete processing the request in 20 days. This evidence substantially undermines EPIC’s “timeliness” argument. In other words, even assuming that the loss of a “right to expedition” can
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properly be characterized as irreparable harm, in light of DOJ’s uncontested representations, EPIC has failed to establish that its right to expedition has been, or will be, extinguished absent a preliminary injunction.
EPIC also maintains that “any further delay in the processing of EPIC’s FOIA Request will [] irreparably harm EPIC’s ability and the ability of the public to obtain in a timely fashion information that is vital to the current and ongoing debate surrounding the scope of NSA surveillance programs.” (PI Mem. at 10.) EPIC asserts that the “debate over foreign intelligence surveillance . . . has reached a critical juncture” (P.’s Reply Mem. in Support of its Mot. for a Prelim. Inj. (“PI Reply”), ECF No. 11, at 9), and speculates that “[t]he likelihood of a bill being passed in the near future is both ‘certain and great[.]’” (PI Mem. at 12 (quoting Wisc. Gas Co., 758 F.2d at 674)). But such speculation falls short of demonstrating that EPIC will suffer irreparable harm in the absence of a preliminary injunction.
First of all, it is not at all “certain” that the records EPIC seeks are crucial to the public’s understanding of, or participation in, the ongoing surveillance debate. As proof that the FOIA Request concerns matters of current public discourse, EPIC cites to President Obama’s January 17, 2014, statement on FISA reform, which called for to “the intelligence community and the Attorney General [to] identify reform approaches ‘before the [§ 215] program comes up for reauthorization on March 28th.’” (PI Reply at 10 (quoting Barack Obama, Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014) (“Pres. Obama’s Remarks”).) But the March 28 deadline is when the FISA Court is scheduled to reauthorize the collection of telephone metadata under section 215 of the USA Patriot Act of 2001 (Section 501 of FISA, 50 U.S.C. § 1861).
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See Pres. Obama’s Remarks.8 The President made no mention of the government’s alleged use of the separate and distinct pen register/trap and trace authority provided in section 214 of the USA Patriot Act of 2001 (Sections 402 and 403 of FISA, 18 U.S.C. §§ 1842-43)—which appears to involve both a different type of data and a different method of collection than what drove EPIC to submit its FOIA Request in the first instance—and EPIC provides no evidence or argument regarding how or why documents pertaining to use of section 214 (the subject of the FOIA Request) would inform the public debate regarding the reauthorization of the section 215 program.
Moreover and in any event, DOJ counsel stated at the motion hearing that, at least with respect to the first category of requested documents, the NSD will provide its response by February 28, 2014, and it is hard to conceive of any irreparable harm that EPIC will suffer from this relatively short period of additional delay. See Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 278 (D.D.C. 2012) (finding no irreparable injury where agency has agreed to complete processing a request within a short period of time). What is more, even if the Court orders DOJ to respond immediately, DOJ’s response to the FOIA request is unlikely to yield all of the records that EPIC says it urgently needs in order to inform the public. At the hearing on the preliminary injunction motion, DOJ counsel represented that most, if not all, of the Attorney General’s reports that are responsive to EPIC’s FOIA Request are classified; therefore, certain documents in all of the requested categories are likely to fall under FOIA Exemptions. See, e.g., 5 U.S.C. § 552(b) (“This section does not apply to matters that are—(1) (A) specifically authorized under criteria established by an Executive order to
8 Available at available at http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-presidentreview-signals-intelligence (last visited Feb. 10, 2014).
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be kept secret in the interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order[.]”) EPIC cannot claim to be
injured—much less “irreparably” so—if the NSD withholds documents that that EPIC is
not entitled to access in the first instance, and even full-throated protest regarding
allegedly unreasonable processing delays does not alter that reality. Put another way,
EPIC’s contention that it will be irreparably harmed unless it receives the requested
records quickly so that the public can participate fully in the ongoing debate is not only
unproven, it is also fundamentally flawed because it ignores the well-established
statutory FOIA process, which permits government agencies to withhold certain
requested documents and to engage in subsequent litigation over them, without regard to the resulting production delay.9
Undaunted, EPIC points to the fact that “[m]any prominent congressional
committees have acknowledged the importance of the debate . . . and have held several
hearings on the topic over the past six months.” (PI Mem. at 11 (citations omitted).)
But insofar as the current debate concerns potential future legislation regarding FISA
surveillance in general, and perhaps even pen register/trap and trace authority in
particular (see PI Reply at 9-10), there is no looming deadline by which Congress must
act. The FISA pen register/trap and trace provision is part of the larger USA Patriot
9 EPIC appears to acknowledge the realities of the oft-protracted FOIA production process with its insertion into the preliminary injunction motion of a request that, in addition to ordering DOJ to respond to its FOIA Request within 20 days, the Court also “order DOJ to serve on EPIC a Vaughn index ten days following the processing of EPIC’s FOIA Request.” (PI Mem. at 16.) This request is denied. Vaughn indices are typically provided in connection with a the filing of a motion for summary judgment regarding the validity of an agency’s decision to withhold certain documents. Schwarz v. Dep’t of Treasury, 131 F.Supp.2d 142, 147 (D.D.C. 2000). EPIC cites no authority requiring this Court to order submission of the index on such an abbreviated timetable, and there is no reason to require DOJ to create an index and declaration justifying its decision to withhold certain documents until the agency has completed processing EPIC’s FOIA request and the parties have had an opportunity to negotiate regarding any documents that are withheld.
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Act of 2001, the relevant portions of which are not slated to expire until 2015. See Patriot Sunsets Extension Act of 2011, Pub. L. 112-14, 125 Stat. 216. And while EPIC has identified certain FISA-related bills that are pending in Congress, it has not pointed to any scheduled committee hearings, let alone committee or floor votes, that indicate action on those bills is imminent. (PI Reply at 9-10.)
It is also clear from case law that a movant’s general interest in being able to engage in an ongoing public debate using information that it has requested under FOIA is not sufficient to establish that irreparable harm will occur unless the movant receives immediate access to that information. For example, in Judicial Watch, Inc. v. U.S. Department of Homeland Security, 514 F. Supp. 2d 7 (D.D.C. 2007), the district court denied a request for a preliminary injunction prohibiting DHS from “continuing to withhold” documents responsive to Judicial Watch’s FOIA request for records regarding Border Patrol agents shooting a Mexican national. Id. at 8. With respect to irreparable harm, the court rejected the notion that mere delay in disclosing documents would irreparably harm Judicial Watch’s ability to provide information to the public, particularly where the media had already extensively covered the event. See id. at 10. Noting specifically the absence of any evidence of a time-sensitive need for the documents, the court concluded that “plaintiff’s desire to have its case decided in an expedited fashion . . . without more, is insufficient to constitute the irreparable harm necessary to justify the extraordinary relief requested[.]” Id.
So it is here. While EPIC understandably wants the documents it seeks as soon as possible, this Court is not convinced that, absent a court order requiring immediate processing of EPIC’s FOIA Request and document production, EPIC will suffer serious
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and certain harm that qualifies as irreparable harm for the purpose of its request for a preliminary injunction.
C. Balancing the Equities and the Public Interest The final two factors that a court in this jurisdiction must consider when deciding whether to grant a preliminary injunction are the balance of harms and the public’s interest in the issuance of an injunction. See Arkansas Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 821 (D.C. Cir. 2009). When “balanc[ing] the competing claims of injury,” the Court must “consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, 24 (2008) (citations omitted). Additionally, “courts of equity should [have] particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. (internal quotation marks and citations omitted). In this case, the balance of the equities and public’s interest factors tip in favor denying the requested injunction. First, although EPIC contends that it will be harmed without quick access to the requested records, issuing the injunction that EPIC seeks would most clearly impose an undue hardship on other FOIA requesters and would do serious damage to the NSD’s orderly administration of FOIA requests. As mentioned above, DOJ has presented undisputed evidence that 13 other “expedited” FOIA requests were pending within the NSD at the time that the agency expedited EPIC’s FOIA Request. (Bradley Decl. ¶ 4.) Given that there are only so many NSD staffers to process existing requests, allowing EPIC to jump to the head of the line would upset the agency’s processes and be detrimental to the other expedited requesters, some of whom may have even more
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pressing needs. See The Nation Magazine v. Dep’t of State, 805 F. Supp. 68, 74 (D.D.C. 1992) (holding that entry of a preliminary injunction expediting a FOIA request over other pending requests “would severely jeopardize the public’s interest in an orderly, fair, and efficient administration of [] FOIA”).
Furthermore, the mere fact that FISA surveillance in general has been the subject of considerable public attention (see PI Mem. at 10-12) does not necessarily mean that it is in the public’s interest for this Court to issue a preliminary injunction in this case. See Judicial Watch, 514 F. Supp. 2d at 11. For one thing, as mentioned previously, the issue that has recently been in the news media involves use the FISA Court’s authorization under section 215 (50 U.S.C. § 1861) for the NSA to obtain records directly from telecommunications providers, which is distinct from the issue the government’s use of pen registers and trap and trace devices under section 214 to collect bulk internet data. See 50 U.S.C. §§ 1842-43; cf. Electronic Privacy Info. Ctr. v. Dep’t of Defense, 355 F. Supp. 2d 98, 101-02 (D.D.C 2004) (agency properly denied request for expedited processing where requester only provided evidence regarding public interest in data mining in general, and not in the specific subject of its FOIA request).
To be sure, “there is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate.” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977). But there is also a tension between the public’s interest in an agency complying with its statutory mandate to release certain documents and the public’s interest in security, which Congress recognized when it enacted laws that prohibit an agency from freely disseminating certain documents.
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EPIC does not dispute that its FOIA Request most likely encompasses classified records that contain national security information, and thus that Executive Order 13526 (Dec. 29, 2009) limits DOJ’s ability to release such documents to EPIC. This Court is not aware of any authority (and EPIC provides none) that would allow it carte blanche to order DOJ to produce such sensitive documents in response to a FOIA request anyway, without permitting DOJ to take the time it needs to conduct an adequate classification review. And this is even setting aside the fact that, according to DOJ’s uncontested declaration, the gathering, review, and dissemination of the requested records simply cannot be done “immediately” as EPIC requests.10
To repeat, this is not a case in which the plaintiff has shown bad faith or any lack of diligence on the part of the NSD in processing the FOIA Request, which is now not even four months old. Rather, EPIC claims that the agency has acted wrongfully based simply and solely on the deadline set forth in the FOIA statute and the fact that more than 20 days have elapsed without a substantive response to its pending FOIA Request. EPIC pays no mind to the NSD’s duty to conduct a careful balance of its competing obligations to release certain requested information under FOIA and to protect (i.e., withhold) other information under Executive Order 13526 and federal statutes that promote national security. (See generally Bradley Decl.) Balancing these significant concerns is clearly in the public’s interest, and EPIC has not given this Court any reason to disbelieve the agency’s contention that achieving the appropriate balance here
10 In one of the most telling moments of the preliminary motion hearing, the Court asked EPIC what the organization would have the Court do where, as here, the agency says that it is working diligently but that it simply cannot comply with any order that it produce the requested documents within 20 days. Hr’g Tr. at 11:16-22. The futility of the order that EPIC now seeks—and the judicial resources that have been, and would be, needlessly expended to enforce an order with which DOJ cannot comply— certainly cuts against EPIC’s public interest argument.
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will take more time than the 20 days the FOIA prescribes. Cf. Ctr. For Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926-27 (D.C. Cir. 2003) (“It is equally well-established that the judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive purview.”).
The bottom line is this: given the competing public interests at stake in this matter, and also EPIC’s failure to provide any evidence that DOJ is intentionally dragging its feet until the surveillance storm blows over, this Court sees no need to short-circuit the NSD’s ongoing document review process preliminarily and in the manner that EPIC’s motion requests. See ACLU v. Dep’t of Defense, 339 F. Supp. 2d 501, 504 (D.D.C. 2004) (“It is the duty of the court to uphold FOIA by striking a proper balance between plaintiffs’ right to receive information on government activity in a timely manner and the government’s contention that national security concerns prevent timely disclosure or identification.”). IV. CONCLUSION
For the foregoing reasons, EPIC has failed to carry its burden with respect to any of the four preliminary injunction factors, and the Court concludes that its motion for a preliminary injunction must be DENIED. This case will proceed to the merits, and the Court will exercise its ordinary jurisdiction over the pending FOIA process, which involves “supervis[ing] the agency’s ongoing progress” and “ensuring that the agency continues to exercise due diligence in processing the request.” CREW, 711 F.3d at 189; see also id. n. 7 (noting that “[t]he district court may of course consider FOIA cases in the ordinary course” because “[t]here is no statutory mandate for district courts to prioritize FOIA cases ahead of other civil cases on their dockets”).
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A separate order, including deadlines for further proceedings, will follow.

Dated: February 11, 2014

Ketanji Brown Jackson
KETANJI BROWN JACKSON United States District Judge

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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.

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Civil No. 13-cv-1961 (KBJ)

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MEMORANDUM OPINION AND ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT WITHOUT PREJUDICE AND
REQUIRING SUPPLEMENTAL SUBMISSIONS

Before this Court at present are cross-motions for summary judgment that the

parties in the instant action, which was brought under the Freedom of Information Act

(“the FOIA”), 5 U.S.C. § 552, have filed. (See Def.’s Mot. for Summ. J. (“Def.’s

Mot.”), ECF No. 22; Pl.’s Combined Opp’n to Def.’s Mot. for Summ. J. & Cross-Mot.

for Summ. J. (“Pl.’s Mot.”), ECF No. 25.) The motions center on the parties’

disagreement about whether or not the Department of Justice (“DOJ” or “Defendant”)

has properly invoked several FOIA exemptions to withhold certain information in

response to a document request that plaintiff Electronic Privacy Information Center

(“EPIC”) submitted to the agency. (See, e.g., Mem. of Law in Supp. of Def.’s Mot.,

ECF No. 22-1, at 10 (“Consistent with FOIA’s exemptions, [DOJ] has withheld

classified information, information specifically protected by statute, and information

that would reveal sensitive law enforcement techniques, procedures, and guidelines.”);

Mem. of Law in Supp. of Pl.’s Mot., ECF No. 25-1, at 6 (“[DOJ] has not satisfied its

statutory obligation to disclose records responsive to EPIC’s request or established that they are exempt from disclosure.”).1 During the recent hearing that this Court held on these motions, it became abundantly clear that the exemption issues have narrowed substantially since EPIC first filed its complaint in this matter, and, indeed, so much so that the declarations that DOJ has submitted fail to establish with sufficient specificity the government’s reasons for asserting that the particular, limited number of documents that remain at issue have been properly withheld or properly redacted.
As a result, and for the reasons explained below, both parties’ cross-motions will be DENIED WITHOUT PREJUDICE, and DOJ will be ordered to file one or more supplemental declarations and an updated Vaughn Index that is tailored to the challenged withholdings in the particular documents currently in dispute. This Court will also require the government to submit unredacted versions of all of the documents that remain at issue in order to facilitate the Court’s in camera review of the materials.
I. BACKGROUND In early October of 2013, EPIC submitted a FOIA request to DOJ, seeking
records regarding a now-expired national security program that involved the United States government’s surreptitious use of certain devices to collect communications information. (Compl., ECF No. 1, ¶ 2.) DOJ did not respond to EPIC’s FOIA request within the statutory timeframe, and on December 9, 2013, EPIC filed the instant lawsuit, along with a motion for a preliminary injunction seeking a court order that required DOJ to provide responsive documents within 20 days. (Id.; Pl.’s Mot. for a
1 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns.
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Prelim. Inj., ECF No. 3, at 1.) This Court denied EPIC’s motion for a preliminary
injunction on February 11, 2014; at the same time, the Court also required the parties to
file periodic status reports regarding the status of the government’s review and
production of documents, in order to ensure that DOJ was exercising due diligence in
processing EPIC’s request. (Order, ECF No. 14; Mem. Op., ECF No. 15.)
DOJ substantially completed processing responsive documents by late summer of
2014, and, thereafter, the parties proposed a schedule for the government’s submission
of a Vaughn Index and the parties’ cross-motions for summary judgment. (See Joint
Status Rpt., ECF No. 20.) This Court adopted the parties’ proposed briefing schedule
on August 18, 2014. (See Minute Order of Aug. 18, 2014.) Then, on October 31, 2014,
DOJ filed a motion for summary judgment, a statement of material facts as to which there is no genuine dispute, and four supporting declarations.2 Attached to one of the
declarations was a Vaughn Index that contained 92 entries. (See Ex. A to 2d Decl. of Mark. A. Bradley (“Vaughn Index”), ECF No. 22-3, at 8–24).3
EPIC filed a combined opposition and cross-motion for summary judgment on
November 21, 2014 (see Pl.’s Mot.), and in that filing, it conceded (albeit implicitly)
that some of the documents listed in the government’s Vaughn Index had been properly
2 The declarations—one of which included classified information and was submitted in both its redacted (unclassified) and original forms—are as follows: (1) the “Second Declaration of Mark A. Bradley” (Ex. I to Def.’s Mot., ECF No. 22-3 (“2d Bradley Decl.”)); (2) the “Classified Declaration of David M. Hardy” (see Notice Regarding Submission of Classified Decl. of David M. Hardy, Ex. II to Def.’s Mot., ECF No. 22-4; see also the “Unclassified Declaration of David M. Hardy” (Ex. III to Def.’s Mot., ECF No. 23-1); (3) the “Declaration of David J. Sherman” (Ex. IV to Def.’s Mot., ECF No. 22-6); and (4) the “Declaration of Martha M. Lutz” (Ex. V to Def.’s Mot., ECF No. 22-7). Notably, DOJ had filed the “first” declaration of Mark Bradley as part of its opposition to the EPIC’s motion for a preliminary injunction. (See Decl. of Mark A. Bradley, Ex. 1 to Def.’s Mem. of Law in Opp’n to Pl.’s Mot. for a Prelim. Inj., ECF No. 9-1.) 3 The Vaughn Index apparently originally contained 139 entries; DOJ has represented that it removed certain items from the index before filing it with this Court. (See Vaughn Index at 1 n.1.)
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withheld. (See Mem. of Law in Supp. of Pl.’s Mot., ECF No. 25-1, at 6 (failing to address any of the withholdings based on FOIA Exemption 3, and stating that EPIC “now challenges [DOJ’s] withholding of certain portions of [Congressional oversight] reports under Exemptions 1 and 7(E), as well as [DOJ’s] failure to release reasonably segregable portions of a legal brief and associated case summaries that were submitted to the Foreign Intelligence Surveillance Court” (emphasis added)).) DOJ subsequently made a concession of its own: in response to the arguments in EPIC’s cross motion, DOJ admitted that it had mistakenly withheld certain information that should have been released, and subsequently released that information to EPIC. (See Mem. in Opp’n to Pl.’s Cross-Mot. for Summ. J. & Reply in Further Support of Def.’s Mot. for Summ. J. (“Def.’s Reply”), ECF No. 27, at 8.)
In its brief in opposition to EPIC’s cross-motion for summary judgment, DOJ further attempted to clarify the remaining issues, by declaring that EPIC had “conceded the bulk of the Motion for Summary Judgment filed by defendant,” and now appeared only to be contesting “the withholding in full of one document by the FBI, and the partial withholding of 25 semiannual reports to Congress by the Department’s National Security Division[.]” (Id. at 7.) The fully-withheld document that was seemingly still in dispute appeared as entry 68 on the Vaughn Index (hereinafter dubbed “Document 68”), and the government described this document as “a government ‘response to orders [of the Foreign Intelligence Surveillance Court (“FISC”)] for additional briefing in reference to a [government] request for’ two combined Pen Register/Trap and Trace and Business Records (‘PR/BR’) Orders” (id. at 9 (citation omitted)), including attachments that consisted of “material printed from Westlaw” (id. at 10; see also Vaughn Index at
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17). DOJ also reiterated its understanding that EPIC was persisting in its challenge to the redactions that had been made with respect to 25 semiannual reports to Congress by DOJ’s National Security Division, which had been partially released and appear as entries 115–139 on the Vaughn Index (“Documents 115–139”). (Vaughn Index at 18– 24.)
DOJ submitted two additional declarations along with its opposition to EPIC’s cross motion for summary judgment: a third declaration from Mark A. Bradley explaining in further detail why DOJ redacted certain portions of Documents 115–139 (3d Decl. of Mark Bradley, Ex. I to Def.’s Reply (“3d Bradley Decl.”), ECF No. 27-2– 27-5), and a classified declaration from David M. Hardy that addressed DOJ’s reasons for withholding Document 68 in its entirety and also provided further information regarding DOJ’s decision to redact portions of Documents 115–139 (see Notice Regarding Classified 3d Decl. of David M. Hardy, Ex. II to Def.’s Reply, ECF No. 276). Significantly for present purposes, EPIC responded in its reply brief in support of its cross-motion for summary judgment that it no longer sought disclosure of Document 68 in its entirety; rather, it was now challenging only the government’s withholding of the Westlaw printouts that were attached to the FISC brief. (See Pl.’s Reply in Supp. of the Cross-Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 30, at 7 (“The NSD’s argument that the release of Westlaw printouts ‘could be reasonably expected to cause serious harm to national security,’ Def.’s Opp’n at 4, is simply not plausible.”).)
This Court held a hearing on the cross-motions for summary judgment on January 21, 2016, during which it sought clarification from the parties regarding precisely which of the original 92 documents listed on the Vaughn Index remain at
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issue. Based on counsel’s representations at that hearing, this Court understands that EPIC is currently contesting the government’s withholding of (1) the four Westlaw case printouts attached to Document 68, and (2) those portions of the 25 semiannual reports to Congress (Documents 115–139) that consist of summaries of FISC legal opinions, descriptions of the scope of the FISC’s jurisdiction, and discussions of FISA process improvements (collectively, the “Remaining Challenged Withholdings”).
II. DISCUSSION The universe of documents at issue in this FOIA action has shrunk dramatically
since DOJ first drafted its Vaughn Index and submitted declarations in support of its motion for summary judgment. To their credit, both parties have pivoted in response to various developments, but due to the many concessions (both implicit and explicit) that the parties have made, the arguments in this matter have been nothing short of a continuously moving target, and indeed, it was not until this Court’s recent hearing on the ripe cross motions for summary judgment that clarity arrived with respect to precisely which withholdings are still in EPIC’s crosshairs. As explained above, EPIC now asserts that it seeks to advance its FOIA action only with respect to two categories of information that the government has withheld: the Westlaw printout-portion of Document 68, which DOJ appears to have withheld (along with the brief to which the printouts were attached) pursuant to FOIA Exemptions 1, 3, and 7(E); and the redacted sections of the 25 semiannual reports to Congress in which the NSD summarizes FISC legal opinions, describes the scope of the FISC’s jurisdiction, or discusses FISA process improvements, which the government appears to have withheld pursuant to FOIA Exemptions 1 and 7(E).
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This Court undertook to review this matter with this newly circumscribed set of issues in mind—and it quickly realized that the declarations that DOJ has submitted in support of its motion for summary judgment do not address these withholdings in particular; rather, the declarants speak broadly to the dangers of releasing the classified and otherwise sensitive information of which these particular withholdings are a part, i.e., information that EPIC has already conceded may properly be withheld. Thus, to this limited extent, EPIC is correct to contend that the declarations that DOJ has filed lack the specificity necessary for this Court to evaluate whether DOJ has released all reasonably segregable portions of non-responsive documents and is acting properly to withhold the specific information EPIC now challenges. (See, e.g., Pl.’s Reply at 6–7, 15.) Put another way, the current sworn statements are too general in scope, and because the declarations fail to home in on the specific withholdings now at issue, they are manifestly inadequate to assist the Court in determining whether the declarants have made a reasonable assessment that the particular withholdings that are now being challenged, “when combined with other information that is available to the public[,] can be expected to reveal (directly or by implication) classified national security information concerning the timing or nature of intelligence activities.” (3d Bradley Decl. ¶ 9; see also Unclassified 3d Decl. of David M. Hardy, Ex. III to Def.’s Reply, ECF No. 27-7, ¶ 55 (asserting, generally, that “[e]ven though some information, if examined in isolation, would appear benign or not sensitive, when read in conjunction with other responsive documents, it reveals sensitive information about FBI techniques and procedures used in national security investigations.”).)
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Consequently, this Court concludes that supplemental filings are in order. Specifically, in order for this Court to evaluate whether DOJ has complied with its FOIA obligation to produce all reasonably segregable information, DOJ must submit one or more declarations that set forth the government’s reasons for withholding the Westlaw printouts attached to Document 68 apart from the FISC brief, and the government must also provide Document 68 to the Court in its entirety for in camera review. Similarly, because it is difficult to glean from the Hardy and Bradley declarations precisely what information DOJ is actually withholding from Documents 115–139, much less ascertain the government’s reasons for withholding summaries of legal opinions and statements related to the FISA court’s jurisdiction and processes, this Court finds that it needs (1) a supplemental Vaughn Index that identifies which of the redactions relate to the “significant legal interpretations by the FISC, its jurisdiction, or its procedures” (3d Bradley Decl. ¶ 8), and (2) one or more declarations tailored to the government’s reasons for making those redactions. See Beltranena v. Clinton, 770 F. Supp. 2d 175, 185–86 (D.D.C. 2011) (holding that the government must specify for each withholding why material is not segregable, and it cannot rely on a blanket explanation). The Court will also require the submission of unredacted copies of the semiannual reports, which, when reviewed in camera in combination with the supplemental declaration(s), will permit this Court to determine whether there is any reasonably segregable information that DOJ must still produce. See Mead Data Ctr., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (“[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.”); see also, e.g., Gosen v. U.S. Citizenship & Immigration Servs., No.
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13cv1091, 2015 WL 4576578, at *8–9 (D.D.C. July 30, 2015) (holding that the agency was required to reassess its segregability findings, where in camera review revealed that the agency had withheld factual information and public material as nonsegregable).4
Accordingly, it is hereby ORDERED that DOJ’s [22] Motion for Summary Judgment and EPIC’s [25] Cross-Motion for Summary Judgment, which, at this point, are not sufficiently tailored to a discussion of the Remaining Challenged Withholdings, are DENIED WITHOUT PREJUDICE. It is FURTHER ORDERED that DOJ has until March 11, 2016, to submit (1) a revised Vaughn Index that is limited to the Remaining Challenged Withholdings and that specifies any and all FOIA exemptions that DOJ asserts for each partial or complete withholding, and (2) one or more declarations that explain with specificity the grounds for each partial or complete withholding that appears in the revised Vaughn Index, as well as the reasons why any non-exempt material that DOJ is withholding cannot reasonably be segregated from exempt material. In addition, on or before March 11, 2016, DOJ shall also lodge with the Classified Information Security Office
4 The government’s current ipse dixit that it is not able to segregate any of the nonexempt legal analyses in the semiannual reports from exempt information, see 3d Bradley Decl. ¶ 9, without more, is manifestly insufficient to satisfy the government’s obligation to demonstrate that this is so. Moreover, in light of the fact that classified information appears to have been successfully segregated from legal analysis in a similar context—see In Re Sealed Case (FISA Ct. July 14, 2004), available at http://www.dni.gov/files/documents/1118/CLEANEDPRTT%201.pdf (a redacted and publicly released version of Judge Kollar-Kotelly’s FISC opinion regarding a government application to collect internet metadata under the pen register and trap and trace provisions of the Foreign Intelligence Surveillance Act)—makes it all the more imperative that DOJ describe with specificity its inability to segregate the material at issue here.
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for ex parte submission to and in camera review by the Court unreadacted copies of the Documents 68 and Documents 115–139 in their entirety. It is
FURTHER ORDERED that renewed motions for summary judgment with respect to the Remaining Challenged Withholdings shall be filed on or before April 8, 2016; the briefs in opposition to such motions for summary judgment shall be filed on or before May 6, 2016; and reply briefs shall be filed on or before May 27, 2016.

DATE: February 4, 2016

Ketanji Brown Jackson
KETANJI BROWN JACKSON United States District Judge

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 Case 1:13-cv-01961-KBJ Document 46 Filed 11/07/17 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.

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Civil No. 13-cv-1961 (KBJ)

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MEMORANDUM OPINION This decision marks the Court’s third foray into the dispute between plaintiff Electronic Privacy Information Center (“EPIC”) and the Department of Justice (“DOJ”) regarding a document request that EPIC submitted to DOJ under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in October of 2013. EPIC seeks records about a now-expired U.S. government national security program that involved the surreptitious use of pen register and trap-and-trace (“PR/TT”) devices to collect communications information (see Compl., ECF No. 1), and this Court previously denied EPIC’s motion for a preliminary injunction, which the organization had filed contemporaneously with its complaint. See Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32 (D.D.C. 2014) (“EPIC I”) (denying the request for an order that required DOJ to process the pending FOIA request immediately and provide responsive documents within 20 days). This Court has also summarily denied previous cross-motions for summary judgment in this matter, largely due to the government’s continued release of additional responsive materials while the parties were briefing those motions. See Elec.

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Privacy Info. Ctr. v. DOJ, No. 13cv1961, 2016 WL 447426 (D.D.C. Feb. 4, 2016) (“EPIC II”).
The parties have now narrowed the scope of the dispute, such that the only issues left for this Court to resolve are whether the government has properly withheld two categories of materials pursuant to FOIA Exemptions 1, 3, and/or 7(E): (1) Westlaw printouts that were attached to a certain brief that the government submitted to the Foreign Intelligence Surveillance Court (“FISC”), and (2) portions of certain reports that DOJ issued to Congress, consisting of summaries of FISC legal opinions, descriptions of the scope of the FISC’s jurisdiction, and discussions of process improvements (collectively, the “Remaining Challenges”).1 DOJ has submitted a revised Vaughn Index and supplemental affidavits speaking to the propriety of these withholdings (see Revised Vaughn Index, ECF No. 35; Fourth Decl. of David M. Hardy (“Hardy Suppl. Decl.”), ECF No. 35-1; Decl. of David J. Sherman (“Sherman Suppl. Decl.”), ECF No. 35-2), and it has also filed—ex parte and in camera—both unredacted copies of the withheld materials and classified versions of the government’s supplemental declarations (see Notice of Lodging Documents for In Camera Review with the Classified Info. Sec. Officer (“Notice of Classified Lodging”), ECF No. 34; In Camera, Ex Parte Classified Fourth Decl. of David M. Hardy (“Classified Hardy Suppl.
1 As explained herein (see infra Part III.A.1), in the course of evaluating the response to EPIC’s FOIA request, DOJ referred particular responsive documents to the Federal Bureau of Investigation (“FBI”) and the National Security Agency (“NSA”) for review and exemption determinations. (See Decl. of Mark A. Bradley (“Bradley Decl.”), ECF No. 22-3, ¶ 7.) The NSA and the FBI are not parties to this lawsuit; however, the Remaining Challenges involve withholding determinations that these agencies made. Therefore, the Court will collectively refer to those two agencies, along with DOJ (the named defendant), as “the government” when discussing the various withholdings.
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Decl.”); In Camera, Ex Parte Decl. of David J. Sherman (“Classified Sherman Suppl. Decl.”)).
Before this Court at present are the parties’ renewed cross-motions for summary judgment regarding these two categories of materials. (See Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 36; Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 37.) DOJ argues that the government properly withheld all of the information at issue in this case pursuant to Exemptions 3 and 7(E) (see Def.’s Mot. at 18–23), and that the classified material in the Congressional reports and FISC filing is further properly withheld under Exemption 1 (see id. at 13–16).2 DOJ also contends that the government has released all non-exempt, reasonably segregable portions of the records that EPIC has requested. (See id. at 23–24.) EPIC’s cross-motion insists that the fact that some of the material that DOJ initially withheld as exempt has now been released suggests that DOJ is acting in bad faith with respect to the withheld materials. (See Pl.’s Mot. at 12–14.) EPIC further asserts that none of the information that the government has withheld is properly deemed classified (see id. at 16–19), nor is it specifically exempted from disclosure by statute (id. at 19–21), nor do the materials satisfy the Exemption 7(E) criteria for protected law-enforcement information (see id. at 21–23). EPIC also argues that the government has failed to release all reasonably segregable information. (See id. at 24–25.)
On September 30, 2017, this Court issued an order that GRANTED IN PART AND DENIED IN PART DOJ’s motion for summary judgment, and also DENIED
2 Page numbers cited herein refer to those that the Court’s electronic case filing system automatically assigns.
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EPIC’s Renewed Motion for Summary Judgment without prejudice. (See ECF No. 45.) This Memorandum Opinion explains the reasons for that order. In sum, and as discussed fully below, the Court has conducted an in camera review of the relevant materials, and it concurs with DOJ’s contention that FOIA Exemption 3 was properly invoked with respect to the Westlaw printouts and the redacted portions of the Congressional reports that EPIC is challenging in this action. (See infra Sec. III.A.1.) It is also clear to the Court that the government has identified an Executive order that specifically authorizes it to maintain the secrecy of the material at issue in the interest of national defense, and that the challenged withheld material is properly classified pursuant to that order; therefore, the government is also entitled to rely on Exemption 1 to withhold the requested information.
Notably, however, DOJ’s general success in establishing that the disputed information can be withheld comes with a caveat: the Court has identified at least three redactions in the Congressional reports that DOJ has categorized as undisputed (i.e., “outside the Remaining Challenges”) but that do appear to fit within the categories of disputed redactions still at issue in this case. Given this mischaracterization, DOJ has not provided any reasons for the government’s withholdings with respect to these particular redactions; therefore, this Court is in no better position to evaluate the appropriateness of these particular redactions than it was prior to the government’s supplemental submissions. See EPIC II, 2016 WL 447426, at *3 (remarking that “the current sworn statements are too general in scope” and that “because the declarations fail to home in on the specific withholdings now at issue, they are manifestly inadequate to assist the Court in determining whether the declarants have made a
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reasonable assessment” under the FOIA). The Court has also identified two other aspects of the government’s withholdings with respect to the congressional reports—a footnote on page 57 of Document 126 and a notation on page 59 of Document 127—that require further clarification, as explained below. Consequently, the accompanying Order requires DOJ to submit one or more supplemental declarations with respect to the congressional reports, in order to address the issues identified herein, and the Order also sets a schedule for submission of renewed motions for summary.
I. BACKGROUND A. Prior Proceedings The prior proceedings in this matter are described in detail in the two opinions
that this Court has previously issued in this case. See EPIC I, 15 F. Supp. 3d 32; EPIC II, 2016 WL 447426. Thus, only a brief recounting of the relevant background details is necessary here. In short, EPIC submitted a FOIA request to DOJ on October 3, 2013, seeking certain records that pertain to the United States government’s prior surreptitious use of PR/TT devices under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1841–46:
1. All reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843. 2. All information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices. 3. All records used in preparation of the above materials, including statistical data.
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(EPIC FOIA Request, Ex. A to Pl.’s Mot. for Prelim. Inj., ECF No. 3-2.) EPIC filed the instant lawsuit, along with a motion for a preliminary injunction, when DOJ did not respond to this FOIA request by the statutory deadline. (See Compl., ECF No. 1.)
After this Court denied EPIC’s motion for a preliminary injunction, EPIC I, 15 F. Supp. 3d 32, DOJ proceeded to process EPIC’s FOIA request, and in doing so, referred certain documents to the Federal Bureau of Investigation (“FBI”) and the National Security Agency (“NSA”) for review and a withholding determination. (See Bradley Decl. ¶ 7.) See also 28 C.F.R. § 16.4(d)(2)(i) (“When the component processing the request believes that a different component, agency, or other Federal Government office is best able to determine whether to disclose the record, the component typically should refer the responsibility for responding to the request regarding that record, as long as the referral is to a component or agency that is subject to the FOIA.”). The government completed processing EPIC’s FOIA request by late summer of 2014, and the parties then proceeded to brief cross-motions for summary judgment.
On October 31, 2014, DOJ submitted its opening summary judgment brief and supporting declarations from declarants of DOJ, the NSA, and the FBI, and it also filed a Vaughn Index that contained 92 entries and invoked Exemptions 1, 3, 6, 7(C), and 7(E). EPIC II, 2016 WL 447426, at *2. (See Vaughn Index, Ex. A to 2d Decl. of Mark A. Bradley (“Bradley Decl.”), ECF No. 22-3, at 8–24.) Then, during the course of the remaining briefing of the summary judgment motions, the number of documents at issue shrank substantially, until at a motion hearing that this Court held on January 21, 2016, counsel for EPIC represented that only two issues remained for this Court to resolve:
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(1) whether the government has properly withheld the Westlaw printouts that are attached to Vaughn Index Document 68, which is a classified legal brief that the government once submitted to the FISC, and (2) whether the government properly redacted from the Semi-Annual Reports that DOJ made to Congress regarding use of FSIA PR/TT devices (hereinafter, the “SARs”) information that consisted of summaries of FISC legal opinions, descriptions of the scope of the FISC’s jurisdiction, and discussions of FISA process improvements. Id. at *3. Importantly, upon its consideration of the parties’ briefs and supporting materials, this Court found “that the declarations that DOJ has submitted in support of its motion for summary judgment do not address these withholdings in particular” and, thus, DOJ’s evidence was insufficient to enable the Court to determine whether the government had properly invoked FOIA exemptions to withhold the information in dispute. Id. (emphasis in original). Consequently, the Court denied the parties’ cross-motions without prejudice, and required DOJ to submit additional declarations that were tailored to the withholdings at issue. Id. at *4. The Court also mandated that DOJ submit the two categories of contested documents for in camera review. Id.
B. Current Proceedings On March 18, 2016, DOJ filed an updated Vaughn Index and unclassified declarations from David M. Hardy of the FBI and David J. Sherman of the NSA. (See Revised Vaughn Index; Hardy Suppl. Decl.; Sherman Suppl. Decl.) On that same day, DOJ also lodged with the Classified Information Security Officer classified versions of the Hardy and Sherman supplemental declarations, as well a copy of Document 68 (the FISC brief) and the attached Westlaw printouts, and unredacted copies of the five contested SARs, which are documents 124–127 and 129 on the Vaughn Index. (See
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Notice of Classified Lodging; Classified Hardy Suppl. Decl.; Classified Sherman Suppl. Decl.)
On April 8, 2016, the parties filed renewed cross-motions for summary judgment based on this significantly narrowed range of documents. (See Def.’s Mot.; Pl.’s Mot.) These are the motions that are presently before this Court. In its motion, DOJ argues that it is entitled to summary judgment because the government properly invoked FOIA Exemption 1 to withhold the Westlaw printouts attached to Document 68 and the redacted portions SARs, given that these materials contain classified NSA or FBI information. (See Def.’s Mot. at 13–16.) DOJ also contends that it was appropriate for the government to rely on FOIA Exemption 3, which permits the withholding of records that are “specifically exempted from disclosure by [a] statute [that] . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld[,]” 5 U.S.C. § 552(b)(3). (See Def.’s Mot. at 16–21.) In this regard, DOJ maintains that the withheld material contains classified information regarding United States communications intelligence activities, or pertains to the NSA’s operations, and is thus exempted from disclosure under Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1) (exempting “intelligence sources and methods” from disclosure), or Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605 (authorizing the withholding of information that relates to “the organization or any function of the [NSA], or any information with respect to the activities thereof”), or 18 U.S.C. § 798(a)(3) (prohibiting disclosure of “classified information. . . concerning the communication intelligence activities of the United States”). (Def.’s Mot. at 18– 21). DOJ further insists that the Westlaw printouts and the Congressional reports were
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“compiled for law enforcement purposes[,]” and thus fall within the protective ambit of FOIA Exemption 7(E) (id. at 23), and that the government has released all non-exempt, reasonably segregable portions of records that are responsive to EPIC’s FOIA request (id. at 23).
For its part, EPIC argues that by continuously releasing materials that it originally withheld, DOJ has called into question not only the propriety of the initial withholdings but also the government’s continued withholding of the material that remains at issue in this case. (See Pl.’s Mot. at 13–15.) EPIC also challenges DOJ’s Exemption 1 arguments, asserting that the material at issue is not “properly classified” given its nature (id. at 16 (citations omitted)), and that the government’s withholding of otherwise publicly available Westlaw printouts is especially “absurd[]” (id. at 17). With respect to the government’s reliance on Exemption 3, EPIC contends, first, that the government invoked Exemption 3 belatedly and in bad faith; and second, that affidavits from the FBI and the NSA are legally insufficient to justify the Exemption 3 withholdings because DOJ’s National Security Division (“NSD”) created and controls the documents at issue, and NSD is not a member of the intelligence community that is permitted to invoke the National Security Act for purposes of Exemption 3. (Id. at 19– 21). EPIC also strenuously objects to DOJ’s Exemption 7(E) arguments (id. at 21–23), and insists that “it is implausible that entire legal opinions” such as the Westlaw printouts “would be devoid of reasonably segregable material” (id. at 24). Similarly, EPIC states that the summaries of FISC opinions, FISC jurisdiction, and FISA procedures are reasonably segregable, non-exempt material that must be disclosed (id. at 24–25).
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The parties’ cross-motions for summary judgment are now ripe for this Court’s review. (See Def.’s Mem. of Law in Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 38; Pl.’s Mem. in Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 39; Def.’s Reply in Supp. of Def.’s Mot., ECF No. 42; Pl.’s Reply in Supp. of Pl.’s Mot. (“Pl.’s Reply”), ECF No. 43.)
II. LEGAL STANDARDS A. The FOIA And Its Exemptions The FOIA seeks to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation marks and citation omitted). As relevant here, the statute prescribes that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). However, “[i]n enacting FOIA, the Congress sought to balance the public’s interest in governmental transparency against legitimate governmental and private interests [that] could be harmed by release of certain types of information.” United Tech. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (second alteration in original) (internal quotation marks and citations omitted).
To that end, the FOIA specifies nine exemptions that permit agencies to withhold information from disclosure. See 5 U.S.C. § 552(b); see also Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F. Supp. 2d 13, 18 (D.D.C. 2011). For example, agencies are authorized to withhold otherwise responsive documents and information
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that are “properly classified” pursuant to an Executive order or otherwise “specifically exempted from disclosure” under certain statutes. 5 U.S.C § 552(b)(1), (3). “These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v. Dep’t of the Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted). Moreover, even if a portion of the records is justifiably withheld pursuant to one of the enumerated exemptions, the FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt[.]” 5 U.S.C. § 552(b); see also Assassination Archives & Research Ctr. v. CIA., 334 F.3d 55, 58 (D.C. Cir. 2003) (explaining that “even if an agency establishes an exemption, it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s)” (citing 5 U.S.C. § 552(b)); Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (“The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.”).
B. Summary Judgment In FOIA Cases Generally “FOIA cases typically and appropriately are decided on motions for summary judgment.” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C. 2014) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). A district court reviewing a motion for summary judgment in the FOIA context conducts a de novo review of the record, 5 U.S.C. § 552(a)(4)(B), analyzing all underlying facts and inferences in the light most favorable to the FOIA requester. See Willis v. Dep’t of Justice, 581 F. Supp. 2d 57, 65 (D.D.C. 2008). Because Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted only
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if the pleadings, disclosure materials on file, and affidavits “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law[,]” Fed. R. Civ. P. 56(a); see also Judicial Watch v. Navy, 25 F. Supp. 3d at 136 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)), in a FOIA case, summary judgment for an agency is appropriate only when the agency proves that it has “fully discharged its [FOIA] obligations[,]” Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996). Thus, an “agency must demonstrate that ‘each document that falls within the class requested either has been produced . . . or is wholly exempt from [FOIA’s] inspection requirements[.]’” Gov’t Accountability Project v. FDA, 206 F. Supp. 3d 420, 430 (D.D.C. 2016) (quoting Gilda Indus., Inc. v. U.S. Customs & Border Prot. Bureau, 457 F. Supp. 2d 6, 9 (D.D.C. 2006) (first and second alterations in original).
If an agency contends that it is entitled to withhold information under a FOIA exemption, it “bears the burden of proving the applicability of [the] claimed exemptions[,]” and such a showing is typically made in agency affidavits. Am. Civil Liberties Union v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). Such affidavits are entitled to a presumption of good faith, and the court can award the agency summary judgment based solely on the information so provided. See Hedrick v. FBI, 216 F. Supp. 3d 84, 94–95 (D.D.C. 2016). However, to be sufficient to support a summary judgment motion, the agency’s affidavits must describe “the justifications for nondisclosure with reasonably specific detail, [and] demonstrate that the information withheld logically falls within the claimed exemption,” and must not be “controverted
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by either contrary evidence in the record []or by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
Although a reviewing court evaluates de novo an agency’s invocation of a FOIA exemption and its supporting declarations, see Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007), “in conducting de novo review in the context of national security concerns, courts must accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.” Id. (emphasis, internal quotation marks, and citation omitted). This is because “‘the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse [e]ffects might occur as a result of a particular classified record[.]’” McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983) (quoting S. Rep. No. 1200, 93d Cong., 2d Sess. 12, U.S. Code & Admin. News 1974, p. 6267 (1974) (Conf. Rpt. on the FOIA Amendments)).
That said, the Court is authorized to conduct its own evaluation of whether or not disputed documents fall within the scope of the enumerated exemptions. The FOIA permits in camera review of withheld records, but notably, “‘the use of in camera affidavits has generally been disfavored[.]’” Shapiro v. DOJ, 239 F. Supp. 3d 100, 110 (D.D.C. 2017) (quoting Armstrong v. Exec. Office of the President, 97 F.3d 575, 580 (D.C. Cir. 1996)). When presented with an in camera submission, the court must ensure that “as much as possible of the in camera submission [is made] available to the opposing party” without disclosing the material that the agency seeks to protect. Armstrong, 97 F.3d at 580; see also Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 16 (D.D.C. 2009) (“[W]here, as here, an agency indicates that no additional
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information concerning an investigation may be publicly disclosed without revealing precisely the information that the agency seeks to withhold, the receipt of in camera declarations is appropriate.”).
Finally, with respect to the duty to produce all reasonably segregable information that remains after exempt information has been withheld, “[t]he government bears the burden of demonstrating that no reasonably segregable material exists in the withheld documents[,]” and “must provide[ ] a detailed justification and not just conclusory statements to demonstrate that all reasonably segregable information has been released.” Barouch v. DOJ, 962 F. Supp. 2d 30, 56 (D.D.C. 2013) (internal quotation marks and citation omitted).
III. ANALYSIS To their credit, the parties in this case have diligently narrowed the range of
documents at issue from 92 to six, such that only five SARs (Documents 124–127 and 129) and one set of Westlaw printouts (which are attached to Document 68) remain in dispute at this time. See supra Part I.A. The detailed facts that underpin the government’s decision to withhold these responsive records are revealed only in the classified declarations that DOJ has provided to this Court—which, admittedly, puts EPIC at a distinct disadvantage with respect to its argument that the withheld information should be released. (See Pl.’s Opp’n at 5 (noting that DOJ makes only “conclusory assertions” in the public filings, and “has redacted nearly all of the substantive arguments in support of the withholdings”).) This Court is sensitive to the public’s interest in having a fulsome public record, and it is also aware that “in camera review ‘deprives the FOIA requester of an opportunity to present his interpretation of
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the withheld documents’” as a general matter. Jarvik v. CIA, 741 F. Supp. 2d 106, 111 (D.D.C. 2010) (quoting Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996)). However, as explained above, the FOIA authorizes an agency to support its withholdings through classified, in camera declarations when there is a reasonable risk “that public itemization and detailed justification would compromise legitimate secrecy interests[.]” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1385 (D.C. Cir. 1979); see also Edmonds v. FBI, 272 F. Supp. 2d 35, 46–47 (D.D.C. 2003) (explaining that in camera review is warranted “when extensive public justification would threaten to reveal the very information for which a FOIA exemption is claimed” (quoting Lykins v. DOJ, 725 F.2d 1455, 1463 (D.C. Cir. 1984) (alteration in original))).
This is such a case. In this Court’s view, the content of the classified declarations, along with the unredacted materials to which they pertain, justify the government’s concerns about potentially harmful disclosure. To the extent that this Court is able, it has explained below its reasons for concluding that the government has properly relied on FOIA Exemption 3, and alternatively FOIA Exemption 1, to withhold nearly all of the redacted and undisclosed materials that are still at issue in this case, including the Westlaw printouts and nearly all of the portions of the SARs that are at issue. However, in camera review of the SARs reveals that the government may have failed to address a handful of withholdings that are still in dispute, and as a result, the Court will require supplemental submissions regarding these redactions, as described below.
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A. The Government Properly Invoked Exemption 3 To Withhold The Information At Issue
An agency may rely on Exemption 3 to withhold records in response to a FOIA request where a statute “specifically exempt[s]” the requested information from disclosure, so long as that statute either “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue[,]” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]” 5 U.S.C. § 552(b)(3). The two listed conditions are disjunctive, and thus the statute at issue “need satisfy only one of them to qualify under Exemption 3.” Gov’t Accountability Project, 206 F. Supp. 3d at 428 (citing Pub. Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008)). However, notably, “[b]efore a court inquires into whether any of the [two statutory] conditions [for withholding information] are met . . . it must first determine whether the statute is a withholding statute at all by deciding whether it satisfies ‘the threshold requirement that it specifically exempt matters from disclosure.’” Pub. Citizen, 533 F.3d at 813–14 (emphasis in original) (quoting Reporters Comm. for Freedom of the Press v. DOJ, 816 F.2d 730, 734 (D.C. Cir. 1987)).
“To determine whether a statute qualifies as a withholding statute as required, courts look to ‘the language of the statute on its face[.]’” Gov’t Accountability Project, 206 F. Supp. 3d at 429 (quoting Zanoni v. U.S. Dep’t of Agric., 605 F. Supp. 2d 230, 236 (D.D.C. 2009)). “In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure.” Reporters Comm., 816 F.2d at 735, rev’d on other grounds, 489 U.S. 749 (1989). If the statute passes this threshold test, the court next determines whether the statute satisfies
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either of the two statutory disjunctive conditions for withholding the responsive information. See Gov’t Accountability Project, 206 F. Supp. 3d at 428; see also Fitzgibbon, 911 F.2d at 761-62 (“[T]he sole issue for decision [with respect to Exemption 3] is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage.” (internal quotation marks and citation omitted)).
Here, the government has pointed to three separate statutes—Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1); Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605; and 18 U.S.C. § 798—and asserts that each qualifies as a withholding statute for the purpose of Exemption 3. (See Def.’s Mot. at 18-21.) The government further argues that these statutes required the relevant government agencies to withhold the redacted portions of the SARs and the Westlaw printouts, because that material either concerns U.S. communications intelligence activities and is classified, or pertains to NSA operations. (See id.) As explained below, there appears to be no dispute about this legal analysis; instead, EPIC seeks to advance the novel contention that, even though DOJ’s NSD referred certain documents to the FBI and the NSA for exemption determinations under governing FOIA regulations, the government cannot assert certain otherwise applicable FOIA exemptions in the instant context because the FOIA request was directed to NSD in the first instance. As explained below, this Court agrees with the government that Exemption 3 is applicable to the withholdings at issue, and it rejects EPIC’s assertion that this FOIA exemption has nevertheless been improperly invoked under the circumstances presented in this case.
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1. The Statutes That The Government Relies Upon Qualify As “Withholding Statutes,” And The Challenged Information Was Within The Scope Of Each Statute
The FBI and the NSA have each reviewed the materials responsive to EPIC’s FOIA request, and both have cited Exemption 3 to withhold certain information. (See supra Section I.B.) The FBI seeks to withhold the Westlaw printouts and to make redactions on 20 pages of the SARS, and it relies on a single statute to justify all of these withholdings under Exemption 3—Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1), which requires the “Director of National Intelligence” (“DNI”) to “protect from unauthorized disclosure intelligence sources and methods.” (Hardy Suppl. Decl. ¶ 15.) The DNI has delegated enforcement of this National Security Act mandate to the heads of the 17 agencies that constitute the “Intelligence Community[,]” see Intelligence Community Directive 700, at 3 (June 7, 2012), available at http://www.dni.gov/files/documents/ICD/ICD_700.pdf, and the FBI and the NSA (but not the NSD) are among these agencies, see Dir. of Nat’l Intelligence, Members of the IC, https://www.dni.gov/index.php/what-we-do/members-of-the-ic; see also DiBacco v. U.S. Army, 795 F.3d 178, 197–99 (D.C. Cir. 2015); ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). The NSA has also relied on Section 102(A)(i)(1) of the National Security Act to justify certain withholdings. (See Vaughn Index at 3.) Additionally, with respect to its withholding on page 51 of Document 129, the NSA also points to 50 U.S.C. § 3605 (Section 6 of the National Security Agency Act of 1959), which authorizes the government to withhold information that relates to “the organization or any function of the [NSA], or any information with respect to the activities thereof,” and 18 U.S.C. § 798, which prohibits disclosure of “classified
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information . . . concerning the communication intelligence activities of the United States[.]” (See Sherman Suppl. Decl. ¶ 2.)
It is well established that each of the statutes that the FBI and the NSA relies upon qualifies as an Exemption 3 withholding statute, because each specifically exempts particular material from disclosure and satisfies one aspect of Exemption 3’s disjunctive tests. See, e.g., DiBacco, 795 F.3d at 199 (noting that Section 102A(i)(1) is an Exemption 3 withholding statute that mandates withholding of intelligence sources and methods); Hayden v. NSA, 608 F.2d 1381, 1389–90 (D.C. Cir. 1979) (explaining that Section 6 is an Exemption 3 withholding statute that specifies information to be withheld); Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C. Cir. 2009) (finding that 18 U.S.C. § 798 is an Exemption 3 withholding statute that mandates withholding of the covered material). Thus, the question this Court must address is whether the withheld material at issue here falls within the scope of these statutes.
With respect to the portions of the SARs that the FBI has withheld and that are discussed in the unredacted materials that the government has submitted, this Court finds that withheld material pertains to specific surveillance techniques (see Document 124 at 3–4, 47, 50; Document 125 at 3–5, 50–52; Document 126 at 56–60; Document 127 at 58–61), or discusses particular strengths or limitations of the FISC process in relation to surveillance techniques, and thus the reactions broadly pertain to intelligence methods that must be protected from disclosure under Section 102A(i)(1). Turning to the Westlaw printouts, this Court likewise finds that, given the context in which the printouts exist in this litigation—i.e., as part of a classified brief submitted to the FISC—the printouts also constitute intelligence sources and methods for purposes of
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Section 102A(i)(1), and therefore the FBI properly withheld those materials. With respect to the portions of the SARs that the NSA has redacted, this Court’s own in camera review of the unredacted text of the material reveals that the withheld material discusses a particular classified NSA surveillance method (see Document 129 at 51), and thus is protected from disclosure.3
In light of its own in camera review and the submitted declarations, the Court readily finds that the material falls within the ambit of each cited statute—specifically, the withheld information pertains to intelligence sources and methods and NSA activities within the scope of 50 U.S.C. §§ 3024(i)(1) and 3605, and also contains classified information concerning communication activities within the ambit of 18 U.S.C § 798.
2. DOJ Is Entitled To Invoke Exemption 3 Based On Affidavits From The FBI And The NSA Under The Circumstances Presented Here
EPIC does not contest that the statutes that the government relies upon are withholding statutes, nor does it appear that EPIC rejects the prior substantive analysis—i.e., that the withheld information at issue in this case can properly be withheld under Exemption 3. Indeed, it has made no argument to the contrary. But EPIC does vigorously maintain that DOJ has not followed the right procedure for establishing the applicability of Exemption 3 with respect to the withholdings at issue. Specifically, EPIC maintains that a division of DOJ—the NSD—“created and controls the records at issue” (Pl.’s Mot. at 19), yet there is no declaration from NSD to justify any of the withholdings; rather, the only declarations the government has provided are
3 Section III.B infra, further explains why the redacted material either constitutes intelligence sources and methods, or is classified, or has otherwise been properly withheld.
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from the FBI and NSA (see id.). Continuing along this track, EPIC argues that “[i]t is a matter of first impression in this Circuit whether a non-[Intelligence Community] agency can assert an Exemption 3 claim based on [Section 102A(i)(1) of] the National Security Act.” (Id. at 20.) EPIC further maintains that DOJ has asserted Exemption 3 belatedly and in bad faith, and that DOJ in fact waived the exemption by not asserting it during the prior round of summary judgment briefing in this matter. (Id. at 19; Pl.’s Opp’n at 10–11.)
The Court will address this last alleged procedural deficiency first: given the convoluted procedural history of the instant case, EPIC’s argument that the government has waived the right to rely on Exemption 3 by failing to invoke that exemption in its earlier Vaughn Index is not well-founded. The parties here have engaged in two rounds of summary judgment briefing before this Court, and at this Court’s request, the government has now provided a more detailed explanation of its withholdings, asserting Exemption 3 along with the previously-raised Exemptions 1 and 7(E). The Court does not perceive the government as having acted in bad faith, nor does it view the government’s filings as providing post-hoc rationalizations for withholdings already made. Rather, the document-production process is a fluid one at the district-court level, and it often includes contemporaneous review and continuous production determinations by agency-defendants. Thus, in this Court’s view, the government is entitled to articulate fully all of the justifications for the withholdings that it makes prior to the Court’s ruling on summary judgment—and this is especially so when the Court has expressly invited it to do so.
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To be sure, the D.C. Circuit’s precedent prohibits an agency from invoking new FOIA exemptions when the proceeding is before the district court after remand, following an appeal, as EPIC points out. (See Pl.’s Opp’n at 10 (citing Maydak v. DOJ, 218 F.3d 760, 764 (D.C. Cir. 2000).) But the D.C. Circuit’s holding is clearly grounded in finality concerns. See Maydak, 218 F.3d at 764 (finding that allowing an agency to invoke new FOIA exemptions on remand—thereby essentially restarting the litigation— could interfere with the FOIA’s “statutory goals of ‘efficient, prompt, and full disclosure of information,’ and with ‘interests of judicial finality and economy’” (quoting Senate of Puerto Rico v. DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987))); see also CREW v. DOJ, 854 F.3d 675, 680–81 (D.C. Cir. 2017) (holding that district court erred in allowing agency to assert new FOIA exemption when considering case on remand); Senate of Puerto Rico, 823 F.2d at 580 (noting that agencies cannot “make new exemption claims to a district court after the judge has ruled in the other party’s favor”) (citation omitted). And no such problem is present here, because the Court never reached the merits of the parties’ initial summary judgment motions, and there have not yet been any appellate proceedings. What is more, as far as this Court can tell, EPIC has not been prejudiced in any meaningful sense by the delay in the government’s assertion of Exemption 3, nor has it provided any evidence of bad faith with respect to the government’s timing on this issue. (See Pl.’s Mot. at 19.)
EPIC’s contention that DOJ is not the proper agency to invoke Exemption 3 (see Pl.’s Mot. at 20 (“The National Security Act restricts the ability of the DNI, not civilian agencies, to release certain information”)), and that its reliance on affidavits from NSA and the FBI is improper (see id. at 19 (“The DOJ has not submitted any declaration
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from the NSD, the agency that created and controls the records at issue, to justify the Exemption 3 claim”)), fares no better. The record clearly reveals that DOJ followed a referral process when it responded to EPIC’s FOIA request, consistent with the agency’s regulations. Specifically, DOJ’s regulations expressly provide that, when a DOJ component that is processing a FOIA request “believes that a different component, agency, or other Federal Government office is best able to determine whether to disclose [a certain] record, the component typically should refer the responsibility for responding to the request regarding that record, as long as the referral is to a component or agency that is subject to the FOIA.” 28 C.F.R. 16.4(d)(2)(i). Moreover, and importantly, when such a referral takes place, “the second agency . . . then becomes responsible for directly responding to the requester as to those documents.” Schoenman v. FBI, No. 04-cv-2202, 2009 WL 763065, at *6 (D.D.C. Mar. 19, 2009). The applicable regulations further prescribe a more limited “consultation” procedure that applies “[w]hen records originated with the component processing the request, but contain within them information of interest to another component, agency, or other Federal Government office[.]” 28 C.F.R. § 16.4(d)(1). In that circumstance, “the component processing the request should typically consult with that other component or agency prior to making a release determination.” Id.
Here, the undisputed evidence establishes that DOJ’s NSD referred the SARs and Westlaw printouts to the FBI and NSA pursuant to these regulations with the intent of having those other agencies determine whether any exemptions should be invoked. (See Bradley Decl. ¶ 7 (“In addition, NSD referred documents to the [NSA, FBI, and CIA].”) Courts in this district have long recognized the permissibility of such a referral, see,
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e.g., Elec. Privacy Info. Ctr. v. NSA, 795 F. Supp. 2d 85, 92 (D.D.C. 2011), and EPIC neither challenges the validity of DOJ’s referral regulations nor cites any authority that limits the ability of the agency receiving the FOIA referral to invoke any otherwiseapplicable FOIA exemption. (See Pl.’s Mot. at 19–21.)4 EPIC also fails to explain, or support, its suggestion that an agency’s compliance with its own referral regulations constitutes “bad faith[.]” (See id. at 19.) As such, EPIC’s arguments about NSD’s limited authority provide no basis for invalidating the government’s assertion of Exemption 3.
In the final analysis, this Court finds no procedural impropriety in DOJ’s reliance on the FBI and NSA affidavits to support the invocation of Exemption 3, despite the fact that the withheld records are under NSD’s control. And with respect to Section 102A(i)(1) in particular, the referral process that was followed here indicates that a member of the Intelligence Community was the relevant decision-maker with respect to these records, and has called for their withholding, precisely as Section 102A(i)(2) envisions.
B. The Government Can Also Withhold The Information At Issue Under Exemption 1
FOIA’s Exemption 1 provides an independent and alternative justification for the government’s withholding of the disputed portions of the SARs and the Westlaw printouts. Exemption 1 permits an agency to withhold information that is “specifically authorized under criteria established by an Executive order to be kept secret in the
4 This is for good reason, as it makes little sense to instruct an agency to refer documents to another agency for the latter agency to make exemption determinations (or, if the consultation process is used, to consult with another before making its own release determination), but at the same time circumscribe the ability of either agency to invoke an otherwise-applicable FOIA exemption as a result of the referral or consultation.
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interest of national defense or foreign policy” and is “in fact properly classified pursuant to such Executive order[,]” 5 U.S.C. § 552(b)(1)(A). “Thus, an agency attempting to withhold information under [E]xemption 1 must show that it ‘complies with classification procedures established by the relevant executive order and withholds only such material as conforms to the order’s substantive criteria for classification.’” Mobley v. DOJ, 870 F. Supp. 2d 61, 66 (D.D.C. 2012) (quoting King v. DOJ, 830 F.2d 210, 214 (D.C. Cir. 1987)).
As relevant here, Executive Order 13,526 governs the classification of national security information and delineates four conditions that must be met for information to be deemed “classified” properly:
(1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage. Exec. Order 13,526 of Dec. 29, 2009 § 1.1, Classified National Security Information, 75 Fed. Reg. 705, 707 (Jan. 5, 2010) (“E.O. 13,526”). Notably, in section 1.4, the Executive order references eight specific categories of information that “could reasonably be expected to cause identifiable or describable damage to the national security[,]” including information pertaining to “intelligence activities (including covert action) [and] intelligence sources or methods, . . . foreign relations or foreign activities
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of the United States, . . . [or] vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security[.]” E.O. 13,526 § 1.4(c), (d), (g). Thus, if information that is responsive to a FOIA request fits into any of the eight categories, and if an original classifying authority has designated the information classified based on that authority’s determination that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, the information has properly been deemed “classified” and the government can invoke Exemption 1 to withhold the information from disclosure under the FOIA. See Larson v. Dep’t of State, 565 F.3d 857, 864 (D.C. Cir. 2009) (in evaluating whether material is properly classified, a court must “accord substantial weight to an agency’s affidavit concerning the . . . classified status of the disputed record”) (internal quotation marks and citation omitted).
In this case, the invocation of Exemption 1 is proper, because the government has both pointed to an applicable Executive Order and established through its declarations that the withheld material is properly classified under the Order’s terms.
1. The Remaining SARS Challenges Concern Information That Has Properly Been Deemed Classified
EPIC challenges the government’s withholding of information in the SARs that pertains to summaries of FISC legal opinions, descriptions of the scope of the FISC’s jurisdiction, and discussions of process improvements on Exemption 1 grounds, because in EPIC’s view, such information cannot properly be deemed classified. (See Pl.’s Mot. at 16–18.) This Court disagrees. Notwithstanding the fact that the challenged SARs redactions concern legal opinions and descriptions, it is clear that they nevertheless satisfy the criteria for classification set forth in Executive Order 13,256.
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First of all, the challenged SARs information indisputably satisfies the first and second criteria of Executive Order 13,256. See 75 Fed. Reg. at 707. Hardy and Sherman each declares that he has the requisite classification authority (see Hardy Suppl. Decl. ¶ 2; Decl. of Alan J. Sherman (“Sherman Decl.”), ECF No. 22-6, ¶ 2), and there is no dispute that United States Government has control of the withheld material (see Hardy Suppl. Decl. ¶ 11; Sherman Decl. ¶ 2).
The challenged SARs information also constitutes “intelligence sources and methods” within the meaning of section 1.4 of Executive Order 13,256, and thus, satisfies the third criterion. Section 1.4(c) of Executive Order 13,526 provides that information can be deemed classified when “it pertains to . . . intelligence activities (including covert action), intelligence sources or methods, or cryptology[,]” E.O. 15,526 § 1.4(c) (emphasis added), and both Sherman and Hardy declare that the redacted portions of the SARs satisfy this requirement. (See Hardy Suppl. Decl. ¶ 11 (declaring that FBI information in the SARs “is exempt from disclosure pursuant to E.O. 13526, §1.4, category (c) intelligence activities (including covert action), intelligence sources and methods, or cryptology”); Sherman Suppl. Decl. ¶ 3 (“I have determined that the NSA information at issue in this case concerns. . . intelligence sources, methods, vulnerabilities and capabilities, and foreign activities of the United States (citing E.O. 13526 § 1.4(d), (g)).) In this regard, the redacted declarations do appear largely conclusory, but the unredacted versions of their statements provide additional detail in support of this contention, and as noted, the national security-related opinion of qualified government officials is entitled to substantial deference in the classification realm. See Larson, 565 F.3d at 864.
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EPIC appears to concede that, insofar as the withheld materials concern pen registers, “a pen register is a ‘method’ of intelligence gathering” (Pl.’s Mot. at 16), but it maintains that the “particular interpretation of the FISA pen register provision by the FISC is not itself a ‘source’ or ‘method’ of intelligence gathering, but a legal judgment” (Pl.’s Mot. at 17 (emphasis added).) This argument misses the mark entirely. The relevant question is not the nature of the withheld information (here, a decision of the FISC and any derivative discussion contained in the SARs), or whether the requested material constitutes a protected form of information in and of itself, but instead whether the withheld information “pertains to” an intelligence source or method. E.O. 15,526 § 1.4(c) (emphasis added); see also ACLU v. CIA, 109 F. Supp. 3d 220, 236 (D.D.C. 2015) (“Thus, a legal analysis need not constitute an intelligence activity, source, or method by itself to warrant protection so long as it pertains to an intelligence activity, source, or method.”), aff’d sub nom., ACLU v. DOJ, 640 F. App’x 9 (D.C. Cir. 2016); N.Y. Times Co. v. DOJ, 915 F. Supp. 2d 508, 535 (S.D.N.Y. 2013) (finding “no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified”), aff’d in part, rev’d in part on other grounds, 756 F.3d 100 (2d Cir. 2014). And this Court’s in camera review of the identified SARs withholdings reveals that the withheld material not only broadly pertains to intelligence sources and methods, as both Sherman and Hardy declare, but also (1) reveals details about specific surveillance techniques in the context of summaries of FISC decisions and legal analysis (see Document 124 at 3-4; Document 125 at 3–5, 50–52; Document 126 at 56–60; Document 127 at 58–61); (2) discusses particular strengths, weaknesses, and/or potential changes in FISC processes (see Document 125, Page 59); (3) describes
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the scope of the FISC’s jurisdiction as it relates to specific intelligence sources and methods (see Document 124 at 47, 50); and provides specific, non-public, factual information regarding NSA signals intelligence methods (see Document 129, at 51).
The fourth and final criterion of E.O. 13,256 requires a classification authority to both determine “that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security” and articulate such damage, E.O. 13,526, § 1.1(a), and this Court finds that Sherman and Hardy have made sufficient efforts in this regard. Notably, such an authority’s assessment of the harm to national security “need only be both ‘plausible’ and ‘logical’ to justify the invocation of a FOIA exemption in the national security context[,]” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 624 (D.C. Cir. 2011) (citing Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)), and the D.C. Circuit has clarified that:
“[i]f an agency’s statements supporting exemption contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise, . . . the [district] court should not conduct a more detailed inquiry to test the agency’s judgment and expertise or to evaluate whether the court agrees with the agency’s opinions.” Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009). Without even considering the declarations, it is eminently logical that publicly disclosing the strengths, weaknesses, and/or changes in the FISC’s own processes, or the limits of the FISC’s jurisdiction, presents a risk that potential targets will alter their behavior to account for the disclosed practices and/or limitations. See, e.g., Sack v. U.S. Dep’t of Def., 823 F.3d 687, 695 (D.C. Cir. 2016) (holding that the agency properly withheld reports regarding the use of polygraphs for the purpose of background investigations, when revealing information “pertaining to the strengths of
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polygraphs, their weaknesses, or anything else [] would create at least a risk that subversive individuals will be armed with advanced knowledge of the procedures used by the United States to screen applicants for sensitive employment positions and security clearances”) (internal quotation marks and citation omitted). Adding to this the Court’s review of the classified versions of the Hardy and Sherman Supplemental Declarations, the Court notes that the unredacted declarations contain detailed and logical explanations of the plausible harm that might flow from revealing to potential targets the details about the surveillance methods and techniques that are discussed in the challenged records (see Classified Hardy Suppl. Decl. ¶¶ 30–31, 34–36, 39, 43; Classified Sherman Suppl. Decl. ¶¶ 9-11), which is all that criterion four requires.
EPIC’s only response is to point to the USA FREEDOM ACT, Pub. L. 114-23, 129 Stat. 268 (see Pl.’s Mot. at 11), which is a statute that requires the Director of National Intelligence to “make publicly available to the greatest extent practicable each [] decision, order, or opinion” of the FISC “that includes a significant construction or interpretation of any provision of law[,]” 50 U.S.C. § 1872(a), but this invocation falls far short of rebutting the reasoned assessments that Hardy and Sherman have made. That is, even if Congress has determined that FISC opinions should generally be made public, as EPIC argues, that this is not an iron-clad statutory mandate, for the statute also establishes that the Director of National Intelligence can waive this disclosure requirement if he or she determines that waiver “is necessary to protect the national security of the United States or properly classified intelligence sources or methods[.]” 50 U.S.C. § 1872(c). What is more, the FREEDOM ACT was enacted in June 2015— well after the reports at issue here were created—and there is nothing to indicate that
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Congress intended the statute to apply retroactively to prior FISC decisions. Cf. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (“[I]t has become a rule of general application that a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.”) (internal quotation marks and citation omitted).
Thus, based on its review of both the unredacted SARs and the classified declarations, this Court finds that the government has established that the material it redacted from the SARs is properly classified, see E.O. 13,256, and therefore can be withheld under Exemption 1.
2. The Westlaw Printouts Can Be Withheld Under Exemption 1, Notwithstanding The Fact That This Particular Information Is Otherwise Publicly Available
The Court has conducted the same four-factor classification analysis with respect to the Westlaw printouts that are attached to the brief submitted to the FISC. As with the SARs, there is no question that (1) the government relies upon an Executive order that permits it to classify national security information, see id., thereby satisfying the first factor; (2) Hardy has the requisite classification authority and the government controls the material (see Hardy Suppl. Decl. ¶ 2), which satisfies prong two; and (3) the printouts pertain to the FBI’s intelligence methods and activities (see Pl.’s Mot. at 17), which satisfies the third prong of the applicable framework.
The parties’ dispute thus centers around the risks of harm associated with disclosure of these printout outs, which are otherwise publicly available on Westlaw. EPIC maintains that the Westlaw printouts cannot themselves be withheld under Exemption 1 because their public status dispels any risk of harm from disclosure in this matter. (See id. (“The DOJ’s argument that publicly available Westlaw printouts are
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also exempt from disclosure reveals the absurdity of the agency’s position.”).) The government acknowledges that the Westlaw printouts may appear “otherwise innocuous[,]” (see Def.’s Opp’n at 13), but it insists that the printouts must be evaluated in the context in which they exist for the purpose of the instant FOIA request—i.e., as attachments to a classified brief submitted to the FISC—and, when so viewed, the printouts may properly be withheld as classified (see id.). In this regard, the government’s core contention is that, “when read or viewed within the context of other available documents and information,” even seemingly innocuous, publicly available information can “reveal highly sensitive information to sophisticated adversaries, such as critical details about important investigative methods and techniques used by the FBI in national security investigations.” (2d Decl. of David M. Hardy, ECF No. 24, ¶ 37; Mot. Hr’g. Tr. at 29 (“That the MPD here in D.C. may use a pen register trap and trace or some more specific technique under its authority under criminal law to apprehend drug dealers or whoever else here in D.C. is not the same as the FBI acknowledging or confirming that the FBI or the U.S. intelligence community or otherwise uses this authority to interdict or apprehend terrorists[.]”).)
In this Court’s view, the government has the better of this argument. Indeed, the Executive order that governs classification of information expressly contemplates a situation in which otherwise unclassified materials may nevertheless be deemed classified depending on the context in which they are retrieved—it states that “[c]ompilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification under this order, and (2) is not otherwise
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revealed in the individual items of information.” E.O. 13,526 § 1.7(e). Furthermore, the D.C. Circuit has long held that, in the context of reviewing classification of information, courts must keep in mind that “[e]ach individual piece of intelligence information, much like a piece of a jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.” Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980); see also Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 929 (D.C. Cir. 2003) (holding that the government properly invoked a FOIA exemption to withhold a list of all of the individuals detained in its post-September 11 terrorism investigation, even where some names had already been publicly disclosed, because the compiled list “could be of great use to al Qaeda in plotting future terrorist attacks or intimidating witnesses in the present investigation”); Taylor v. Dep’t of the Army, 684 F.2d 99, 104–105 (D.C. Cir. 1982) (upholding classification of compilation of information on army combat units even though individual pieces of information were not classified). It is also clear beyond cavil that “[t]hings that d[o] not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation’s intelligence-gathering capabilities from what these documents revealed about sources and methods.” United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989).
Mindful of the deference it must afford to the government in this context, see Ctr. for Nat’l. Sec. Studies, 331 F.3d at 929, this Court finds that the government’s explanation of the harm that might result from release of the Westlaw printouts, and how such a disclosure could reveal national security information that is not evident from looking at the documents in isolation, is reasonable and sufficient to support its
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invocation of Exemption 1. (See Mot. Hr’g Tr. at 30 (“[R]eleasing these Westlaw printouts in this context even without the memo to which they were attached . . . would confirm to adversaries of the United States that there was a significant legal interpretation by the FISA court at a certain time involving the specific uses of FISA PR/TT authority that are nonpublic.”).) In this regard, the Court accepts the government’s assertion that the Westlaw printouts and the main brief to which they are attached are rightfully construed as a single document, and that disclosure of the attachments would elucidate the substance of the main (undeniably classified) document, such that the government is entitled to withhold the attachments themselves. Mobley, 924 F. Supp. 2d at 73 (CIA properly withheld documents where, because of the nature of the documents, “revealing even small portions of the documents would tend to reveal the specific information the CIA is seeking to protect.” (internal quotation marks and citation omitted)). Cf. Charles v. Office of the Armed Forces Med. Exam’r, 979 F. Supp. 2d 35, 45–46 (D.D.C. 2013) (where disclosure of any portion of draft document would reveal agency’s protected editorial process, entire document was exempt from disclosure and no portions were reasonably segrable).
C. No Reasonably Segregable Information Exists In The Withheld Documents
To the extent that EPIC’s argument regarding the government’s withholding of the Westlaw printouts can be cast as a general segregability contention (see Pl.’s Mot. at 24), the argument misunderstands the unseverable relationship between the classified FISC brief and its attachments, and thus fails for the reasons explained in Part III.B.2 above. EPIC’s more pointed assertion that at least some portion of the Westlaw printouts themselves should have been released on segregability grounds (see Pl.’s
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Opp’n at 18 (arguing that “it is implausible that entire legal opinions would be devoid of reasonably segregable material”)) is also misguided, because release of any portion of a Westlaw document carries with it the reasonable risk that anyone with access to public electronic databases such as Lexis and Westlaw could proceed to search for the released language and thereby locate a full copy of the document the government seeks to protect.5
As for the SARS, this Court has conducted a careful in camera review of the information that the government has withheld as well as its classified supplemental declarations, and it finds that the government has satisfied its obligation “of demonstrating that no reasonably segregable material exists in the withheld documents[.]” Barouch, 962 F. Supp. 2d at 56. Stated simply, the SARS redactions are narrowly tailored, and the Court agrees with the government that it is not possible for any additional information to be released without disclosing the very information that the government seeks to protect. See Mobley, 924 F. Supp. 2d at 73.
D. The Government Must Explain Certain Challenged Redactions That Are Not Adequately Addressed In The Supplemental Submissions
All that said, this Court’s in camera review revealed certain inconsistencies in the redactions that the government must address. First, the government appears to have mistakenly labeled certain material as not being within the Remaining Challenges identified in EPIC II, when it appears to fall within the categories of information that
5 EPIC’s own brief provides an example of just how such reverse-search-engineering is done. (See Pl.’s Opp’n at 7–8 & n.3 (noting that EPIC was able to determine which unnamed district court case the government was discussing in a memorandum submitted to the FISC where that case was the only one “according to a Westlaw search, that includes the same language quoted in the NSD’s Verified Memorandum of Law”).) Thus, because release of any portion of the case printouts would disclose the exact information that DOJ seeks to protect, no reasonably segregable material exists in the withheld documents. Barouch, 962 F. Supp. 2d at 56; Mobley, 924 F. Supp. 2d at 73.
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are still in dispute. (See, e.g., pages 53–54 of Document 124, under the heading “Other Legal Interpretations under FISA by the FISC”; page 56 of Document 124, under the heading “FISA Process Improvements”; and page 69 of Document 127, under the heading “FISA Process Improvements.”) Based on its review of the unredacted text, the Court believes that this material may in fact be within the Remaining Challenges, and therefore, the government must either explain why the Court’s reading is incorrect, or submit a supplemental declaration that provides an explanation for why the information is exempt from disclosure.
Second, the government has labeled at least one footnote as outside the Remaining Challenges even though the footnote pertains to text that the government admits is within the Remaining Challenges. (See Document 126, page 57.) The Court will require the government to explain this discrepancy in its supplemental submission, and if the government agrees that the material is within the Remaining Challenges, it must provide a declaration that addresses the text of the footnote and why it is exempt from disclosure.
Third, and finally, on page 59 of Document 127, there is a notation that material is “within the remaining challenged withholdings,” even though no redactions appear on the page, and the government will therefore be required to explain the notation that it has made on this page.
IV. CONCLUSION After careful consideration of the parties’ briefings and DOJ’s ex parte and
classified submissions, and as set forth in the accompanying Order, the Court upholds the government’s general invocations of Exemptions 1 and 3 to withhold the remaining
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items at issue in this lawsuit. Therefore, as set forth in its Order of September 30, 2017, DOJ’s motion for summary judgment has been GRANTED IN PART AND DENIED IN PART and EPIC’s motion for summary judgment has been DENIED without prejudice with respect to the withholding addressed in the supplemental declarations.
The Court will provide the government with one final opportunity to support the withholdings outlined above in Section III.D, and it will require supplemental submissions as outlined in the Order that accompanies this Memorandum Opinion.

DATE: November 7, 2017

Ketanji Brown Jackson
KETANJI BROWN JACKSON United States District Judge

37

 
 Case: 1:13-cv-01961-KBJ As of: 03/20/2019 10:21 AM EDT 1 of 8
CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:13−cv−01961−KBJ

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

Date Filed: 12/09/2013 Date Terminated: 08/30/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ELECTRONIC PRIVACY INFORMATION CENTER

represented by Alan Jay Butler ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140 ext 103 Fax: (202) 483−1248 Email: butler@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc Rotenberg ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140, ext 106 Fax: (202) 483−1248 Email: rotenberg@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amie L. Stepanovich 1837 16th Street, NW Washington, DC 20009 (863) 697−0009 Email: amie.stepanovich@gmail.com TERMINATED: 02/03/2014

Ginger P. McCall ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140 Fax: (202) 483−1248 Email: mccall@epic.org TERMINATED: 05/19/2015

V. Defendant DEPARTMENT OF JUSTICE

represented by Caroline J. Anderson U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530

Case: 1:13-cv-01961-KBJ As of: 03/20/2019 10:21 AM EDT 2 of 8
(202) 353−6417 Fax: (202) 616−2645 Email: caroline.j.anderson@usdoj.gov TERMINATED: 04/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean−Michel Voltaire U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 (202) 616−8211 Fax: (202) 616−8460 Email: jean.michel.voltaire@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305−7919 Fax: (202) 616−8470 Email: rodney.patton@usdoj.gov TERMINATED: 04/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler CONSUMER FINANCIAL PROTECTION BUREAU Office of General Counsel 1700 G Street, N.W. Washington, DC 20552 (202) 435−7248 Fax: (202) 435−7024 Email: steven.bressler@cfpb.gov TERMINATED: 11/09/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/09/2013
12/09/2013 12/09/2013
12/09/2013 12/11/2013

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090−3559629) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General, # 3 Summons U.S. Attorney, # 4 Summons Department of Justice)(Stepanovich, Amie) (Entered: 12/09/2013)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (Stepanovich, Amie) (Entered: 12/09/2013)
3 MOTION for Preliminary Injunction by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Text of Proposed Order)(Stepanovich, Amie) (Entered: 12/09/2013)
Case Assigned to Judge Ketanji Brown Jackson. (zmd, ) (Entered: 12/11/2013)
4 ELECTRONIC SUMMONS (3) ISSUED as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice of Consent, # 4 Consent Form)(md, ) (Entered: 12/11/2013)

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01/02/2014
01/03/2014 01/03/2014
01/03/2014 01/06/2014 01/06/2014 01/07/2014 01/07/2014
01/10/2014
01/16/2014 01/17/2014 01/22/2014 01/24/2014

5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/20/2013. Answer due for ALL FEDERAL DEFENDANTS by 1/19/2014. (Attachments: # 1 Affidavit Affidavit of Service − DC Attorney, # 2 Affidavit Affidavit of Service − U.S. Attorney General, # 3 Affidavit Affidavit of Service − Department of Justice, # 4 Exhibit Receipt for Certified Mail − DC Attorney, # 5 Exhibit Receipt for Certified Mail − U.S. Attorney General, # 6 Exhibit Receipt for Certified Mail − Department of Justice)(Stepanovich, Amie) (Entered: 01/02/2014)
6 MOTION for Extension of Time to File Response/Reply as to 3 MOTION for Preliminary Injunction by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bressler, Steven) (Entered: 01/03/2014)
MINUTE ORDER granting, for good cause shown, 6 Motion for Extension of Time to File Response re 3 MOTION for Preliminary Injunction . It is hereby ORDERED that defendant shall respond to plaintiff's motion by January 10, 2014. It is FURTHER ORDERED that the parties and Court will convene by teleconference at 2:30 PM on January 7, 2014, to discuss scheduling, potential consolidation, and further proceedings in this matter. The parties shall coordinate a conference line and call Chambers at the appointed time. Signed by Judge Ketanji Brown Jackson on 1/3/2014. (lckbj1) (Entered: 01/03/2014)
7 NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 01/03/2014)
NOTICE OF ERROR re 7 Notice of Appearance; emailed to rotenberg@epic.org, cc'd 4 associated attorneys −− The PDF file you docketed contained errors: 1. Invalid attorney signature (jf, ) (Entered: 01/06/2014)
8 NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 01/06/2014)
MINUTE ENTRY: Teleconference held with parties regarding scheduling, consolidation, and procedures for moving case forward. Signed by Judge Ketanji Brown Jackson on 1/7/2014. (lckbj1) (Entered: 01/07/2014)
MINUTE ORDER setting Motion Hearing on 3 MOTION for Preliminary Injunction for 1/24/2014 at 11:00 AM in Courtroom 17 before Judge Ketanji Brown Jackson. The deadline set in the Court's January 3, 2014, Minute Order for Defendant to file its Opposition to 3 MOTION for Preliminary Injunction is unchanged. Plaintiff shall file its Reply in Support of 3 MOTION for Preliminary Injunction, if any, by 1/17/2014. Signed by Judge Ketanji Brown Jackson on 1/7/2014. (lckbj1) Modified on 1/16/2014 to correct motion hearing date (jf, ). (Entered: 01/07/2014)
9 Memorandum in opposition to re 3 MOTION for Preliminary Injunction filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1 Declaration of Mark A. Bradley, # 2 Exhibit 2 Order Granting, in Part, Expedited Relief for the Government in EPIC v. Dep't of Justice, No. 06cv96−HHK (D.D.C.), # 3 Exhibit 3 Order Denying Preliminary Injunction in EPIC v. Dep't of Justice, No. 03cv2078−JR (D.D.C.), # 4 Exhibit 4 Order Denying Preliminary Injunction in Judicial Watch v. Dep't of Justice, No. 00cv1396−JR (D.D.C.), # 5 Text of Proposed Order)(Bressler, Steven) (Entered: 01/10/2014)
10 NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Entered: 01/16/2014)
11 REPLY to opposition to motion re 3 MOTION for Preliminary Injunction filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Butler, Alan) (Entered: 01/17/2014)
12 ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Bressler, Steven) (Entered: 01/22/2014)
Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Motion Hearing held on 1/24/2014. Oral Argument heard re 3 MOTION for Preliminary Injunction and Taken Under Advisement. (Court Reporter Lisa Griffith) (gdf) (Entered: 01/24/2014)

Case: 1:13-cv-01961-KBJ As of: 03/20/2019 10:21 AM EDT 4 of 8

02/03/2014 02/11/2014 02/11/2014 03/07/2014 03/10/2014
03/28/2014 03/31/2014
04/09/2014 07/28/2014 08/08/2014 08/18/2014
10/14/2014 10/15/2014
10/31/2014

13 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Amie L. Stepanovich terminated. (Stepanovich, Amie) (Entered: 02/03/2014)
14 ORDER denying 3 Motion for Preliminary Injunction and requiring parties to file a joint status report on the status of defendant's response to plaintiff's FOIA request by March 7, 2014. Signed by Judge Ketanji Brown Jackson on 2/11/2014. (lckbj1) (Entered: 02/11/2014)
15 MEMORANDUM OPINION denying 3 Plaintiff's Motion for a Preliminary Injunction. Signed by Judge Ketanji Brown Jackson on 2/11/2014. (lckbj1) (Entered: 02/11/2014)
16 STATUS REPORT (Joint Status Report of the Parties) by DEPARTMENT OF JUSTICE. (Bressler, Steven) (Entered: 03/07/2014)
MINUTE ORDER. Upon consideration of the representations made in the parties' 16 Joint Status Report, it is hereby ORDERED that the parties shall file a joint status report on the status of defendant's response to plaintiff's FOIA request by March 28, 2014. Signed by Judge Ketanji Brown Jackson on 3/10/2014. (lckbj1) (Entered: 03/10/2014)
17 STATUS REPORT Joint Status Report of the Parties by DEPARTMENT OF JUSTICE. (Bressler, Steven) (Entered: 03/28/2014)
MINUTE ORDER. Based on the representations made in the parties 17 Joint Status Report, it is hereby ORDERED that the parties file a further StatusReport informing the Court of the status of defendants response to plaintiffs FOIA request and proposing dates for further proceedings, as appropriate, by 8/12/2014. Signed by Judge Ketanji Brown Jackson on 3/31/2014. (lckbj1) (Entered: 03/31/2014)
18 NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 04/09/2014)
19 STATUS REPORT (Interim) by DEPARTMENT OF JUSTICE. (Bressler, Steven) (Entered: 07/28/2014)
20 STATUS REPORT (Joint) and Proposed Schedule by DEPARTMENT OF JUSTICE. (Bressler, Steven) (Entered: 08/08/2014)
MINUTE ORDER setting briefing schedule for cross−motions for summary judgment. Defendant's Summary Judgment motion is due by 10/17/2014. Plaintiff's consolidated Opposition and Cross−Motion for Summary Judgment is due by 11/14/2014. Defendant's consolidated Reply and Opposition to the Cross−Motion for Summary Judgment is due by 12/5/2014. Plaintiff's Reply is due by 12/19/2014. Signed by Judge Ketanji Brown Jackson on 08/18/2014. (lckbj1) (Entered: 08/18/2014)
21 Consent MOTION for Extension of Time to file Motion for Summary Judgment, and Proposed Modified Briefing Schedule by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bressler, Steven) (Entered: 10/14/2014)
MINUTE ORDER granting, for good cause shown Defendant's 21 Consent Motion for Extension of Time. The briefing schedule in this matter is modified as follows: Defendant's Summary Judgment motion is due by 10/31/2014. Plaintiff's consolidated Opposition and Cross−Motion for Summary Judgment is due by 11/21/2014. Defendant's consolidated Reply and Opposition to the Cross−Motion for Summary Judgment is due by 12/11/2014. Plaintiff's Reply is due by 12/19/2014. Signed by Judge Ketanji Brown Jackson on 10/15/2014. (lckbj1) (Entered: 10/15/2014)
22 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Index of Exhibits, # 3 Exhibit I. Declaration of Mark A. Bradley & Exhibit A thereto (Vaughn Index), # 4 Exhibit II. [Notice Regarding Submission of] Classified Declaration of David M. Hardy, # 5 Exhibit III. Public (Redacted) Declaration of David M. Hardy, # 6 Exhibit IV. Declaration of Alan J. Sherman, # 7 Exhibit V. Declaration of Martha M. Lutz, # 8 Statement of Facts, # 9 Text of Proposed Order)(Bressler, Steven) (Entered: 10/31/2014)

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11/05/2014 11/07/2014 11/21/2014 11/21/2014 12/11/2014
12/11/2014 12/12/2014 12/19/2014 05/19/2015 12/07/2015 01/21/2016 02/04/2016
03/08/2016 03/09/2016

23 ERRATA by DEPARTMENT OF JUSTICE 22 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of David M. Hardy (Unclassified))(Bressler, Steven) (Entered: 11/05/2014)
24 NOTICE of Filing Supplemental Declaration of David M. Hardy by DEPARTMENT OF JUSTICE re 22 MOTION for Summary Judgment (Attachments: # 1 Declaration (Second) of David M. Hardy)(Bressler, Steven) (Entered: 11/07/2014)
25 Cross MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Statement of Facts, # 4 Text of Proposed Order)(Butler, Alan) (Entered: 11/21/2014)
26 Memorandum in opposition to re 22 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Statement of Facts, # 4 Text of Proposed Order)(Butler, Alan) (Entered: 11/21/2014)
27 Memorandum in opposition to re 25 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Index of Exhibits, # 2 Exhibit I. 3d Declaration of Mark Bradley, # 3 Exhibit to 3d Bradley Declaration (Part 1 of 3), # 4 Exhibit to 3d Bradley Declaration (Part 2 of 3), # 5 Exhibit to 3d Bradley Declaration (Part 3 of 3), # 6 Exhibit II. (Notice Regarding) Classified Third Declaration of David M. Hardy, # 7 Exhibit III. Unclassified Third Declaration of David M. Hardy, # 8 Statement of Facts)(Bressler, Steven) (Entered: 12/11/2014)
28 REPLY to opposition to motion re 22 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Bressler, Steven) (Entered: 12/11/2014)
29 NOTICE That the Attachments to Defendant's Reply Memorandum in Further Support of its Motion for Summary Judgment may be found at Docket Entry 27 (ECF Nos. 27−1 through 27−8) by DEPARTMENT OF JUSTICE re 28 Reply to opposition to Motion (Bressler, Steven) (Entered: 12/12/2014)
30 REPLY to opposition to motion re 25 Cross MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts)(Butler, Alan) (Entered: 12/19/2014)
31 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 05/19/2015)
MINUTE ORDER Setting Hearing on 22 Motion for Summary Judgment and 25 Cross Motion for Summary Judgment for 1/21/2016 at 10:00 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 12/7/2015. (lckbj1) (Entered: 12/07/2015)
Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Motion Hearing held on 1/21/2016, re 25 Cross MOTION for Summary Judgment and 22 MOTION for Summary Judgment. Oral argument heard and Motions taken under advisement. (Court Reporter Barbara DeVico) (gdf) (Entered: 01/21/2016)
32 MEMORANDUM OPINION AND ORDER denying DOJs 22 Motion for Summary Judgment and EPICs 25 Cross−Motion for Summary Judgment without prejudice; requiring DOJ to submit a revised Vaughn Index and supporting declarations by 3/11/2016, and setting a briefing schedule for renewed motions for summary judgment. Motions for Summary Judgment are due by 4/8/2016. Responses to Motions for Summary Judgment are due by 5/6/2016. Replies re Motions for Summary Judgment are due by 5/27/2016. Signed by Judge Ketanji Brown Jackson on 02/04/2016. (lckbj1) (Entered: 02/04/2016)
33 Unopposed MOTION for Extension of Time to Provide Supplemental Vaughn Index, Declarations, and In Camera Submissions by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Anderson, Caroline) (Entered: 03/08/2016)
MINUTE ORDER granting, for good cause shown, 33 Unopposed Motion for Extension of Time to Provide Supplemental Vaughn Index, Declarations, and In Camera Submissions. It is hereby ORDERED that the deadline for DOJ to submit the

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03/18/2016 03/18/2016 04/08/2016 04/08/2016 05/06/2016 05/06/2016 05/18/2016 05/19/2016
06/21/2016 06/24/2016 07/01/2016 07/20/2016 07/20/2016 08/12/2016

materials required by this Court's 32 Memorandum Opinion and Order is extended to 3/18/2016. Signed by Judge Ketanji Brown Jackson on 03/09/2016. (lckbj1) (Entered: 03/09/2016)
34 NOTICE of Lodging of Documents for In Camera Review with the Classified Information Officer by DEPARTMENT OF JUSTICE (Anderson, Caroline) (Entered: 03/18/2016)
35 NOTICE of Filing of Revised Vaughn Index and Supplemental Declarations by DEPARTMENT OF JUSTICE (Attachments: # 1 Unclassified Declaration (Fourth) of David Hardy, # 2 Unclassified Declaration (Second) of David Sherman)(Anderson, Caroline) (Entered: 03/18/2016)
36 MOTION for Summary Judgment and accompanying Memorandum of Points and Authorities by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Anderson, Caroline) (Entered: 04/08/2016)
37 MOTION for Partial Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Index of Exhibits, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Text of Proposed Order)(Butler, Alan) (Entered: 04/08/2016)
38 Memorandum in opposition to re 37 MOTION for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts Response to Plaintiff's Statement of Facts, # 2 Exhibit Exhibit 1)(Anderson, Caroline) (Entered: 05/06/2016)
39 Memorandum in opposition to re 36 MOTION for Summary Judgment and accompanying Memorandum of Points and Authorities filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts)(Butler, Alan) (Entered: 05/06/2016)
40 Consent MOTION for Extension of Time to File Reply Briefs by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Anderson, Caroline) (Entered: 05/18/2016)
MINUTE ORDER granting 40 Motion for Extension of Time to File Reply Briefs. Is is hereby ORDERED that Defendant shall provide a status report to the Court detailing whether or not the Government has decided to declassify additional material within the remaining challenged withholdings by June 21, 2016. That status report shall also specify the amount of time the parties request to file their respective reply briefs in support of their motions for summary judgment. Signed by Judge Ketanji Brown Jackson on 05/19/2016. (lckbj1) (Entered: 05/19/2016)
41 STATUS REPORT by DEPARTMENT OF JUSTICE. (Anderson, Caroline) (Entered: 06/21/2016)
MINUTE ORDER. Based on the representations in the parties' 41 Status Report, it is hereby ORDERED that the parties shall file their reply briefs in further support of their motions for summary judgment on or before 7/20/2016. Signed by Judge Ketanji Brown Jackson on 06/24/2016. (lckbj1) (Entered: 06/24/2016)
Set/Reset Deadlines: Replies due by 7/20/2016. (tj) (Entered: 07/01/2016)
42 REPLY to opposition to motion re 36 MOTION for Summary Judgment and accompanying Memorandum of Points and Authorities filed by DEPARTMENT OF JUSTICE. (Anderson, Caroline) (Entered: 07/20/2016)
43 REPLY to opposition to motion re 37 MOTION for Partial Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Butler, Alan) (Entered: 07/20/2016)
44 NOTICE of Appearance by Rodney Patton on behalf of DEPARTMENT OF JUSTICE (Patton, Rodney) (Entered: 08/12/2016)

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09/30/2017 11/07/2017 11/07/2017
11/09/2017 12/07/2017 12/07/2017 12/21/2017 01/11/2018 01/11/2018
02/26/2018 02/27/2018 04/11/2018 04/25/2018

45 ORDER GRANTING IN PART AND DENYING IN PART DOJs 26 Motion for Summary Judgment, and DENYING without prejudice EPICs 37 Renewed Motion for Summary Judgment. Memorandum Opinion to be issued shortly, absent unforeseen circumstances. Signed by Judge Ketanji Brown Jackson on 09/30/2017. (lckbj1) (Entered: 09/30/2017)
46 MEMORANDUM OPINION GRANTING in part and DENYING in part DOJs 26 Motion for Summary Judgment, DENYING without prejudice EPICs 37 Renewed Motion for Summary Judgment, and requiring supplemental submissions. Signed by Judge Ketanji Brown Jackson on 11/7/2017. (lckbj1) (Entered: 11/07/2017)
47 ORDER requiring DOJ to submit, on or before 12/9/2017, one or more declarations that explain with specificity the grounds for each partial or complete withholding that the Court has identified in Section III.D of the 46 Memorandum Opinion, as well as the reasons why any non−exempt material within these redactions cannot reasonably be segregated from the exempt material, and setting summary judgment briefing schedule as follows: renewed motions for summary judgment with respect to the withholdings specifically addressed in Section III.D of the 46 Memorandum Opinion shall be filed on or before 1/12/2018; the briefs in opposition to such motions for summary judgment shall be filed on or before 2/9/2018; and reply briefs shall be filed on or before 3/2/2018. Signed by Judge Ketanji Brown Jackson on 11/7/2017. (lckbj1) (Entered: 11/07/2017)
48 NOTICE OF WITHDRAWAL OF APPEARANCE as to DEPARTMENT OF JUSTICE. Attorney Steven Y. Bressler terminated. (Patton, Rodney) (Entered: 11/09/2017)
49 Unopposed MOTION for Extension of Time to Respond to Court's Order by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 12/07/2017)
MINUTE ORDER granting 49 Motion for Extension of Time to Respond to Court's Order. It is hereby ORDERED that Defendant shall file any supplemental declarations on or before 12/21/2017. Signed by Judge Ketanji Brown Jackson on 127/2017. (lckbj1) (Entered: 12/07/2017)
50 RESPONSE TO ORDER OF THE COURT re 47 Order,,,, Set Deadlines,,, filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Patton, Rodney) (Entered: 12/21/2017)
51 Joint MOTION to Vacate Briefing Schedule and to Set a Deadline for Filing a Joint Status Report by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 01/11/2018)
MINUTE ORDER granting 51 Motion to Vacate Briefing Schedule. It is hereby ORDERED that the summary judgment briefing schedule in this matter is VACATED and that the parties shall file a joint status report on or before 2/26/2018, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 1/11/2018. (lckbj1, ) (Entered: 01/11/2018)
52 Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 02/26/2018)
MINUTE ORDER. In light of the representations in the parties' 52 Joint Status Report, it is hereby ORDERED that the parties shall file a further status report on or before 4/25/2018, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 02/27/2018. (lckbj1) (Entered: 02/27/2018)
53 NOTICE OF SUBSTITUTION OF COUNSEL by Jean−Michel Voltaire on behalf of DEPARTMENT OF JUSTICE Substituting for attorney Rodney Patton (Voltaire, Jean−Michel) (Entered: 04/11/2018)
54 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 04/25/2018)

Case: 1:13-cv-01961-KBJ As of: 03/20/2019 10:21 AM EDT 8 of 8

04/26/2018
06/08/2018 06/11/2018 07/18/2018 07/22/2018
08/30/2018
10/12/2018

MINUTE ORDER. In light of the representations on the parties' 54 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 6/8/2018, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 04/26/2018. (lckbj1) (Entered: 04/26/2018)
55 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 06/08/2018)
MINUTE ORDER. Based on the representations in the parties' 55 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 7/23/2018. Signed by Judge Ketanji Brown Jackson on 6/11/2018. (lckbj1) (Entered: 06/11/2018)
56 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 07/18/2018)
MINUTE ORDER. In light of the representations in the parties' 56 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 9/10/2018, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 7/22/2018. (lckbj1) (Entered: 07/22/2018)
MINUTE ORDER. Where only attorneys' fees remain at issue in a FOIA case, it is the practice of this Court to close the case administratively while it awaits notice from the parties regarding settlement of the attorneys' fee or or a joint proposed schedule for briefing this remaining dispute. Accordingly, it is hereby ORDERED that this matter be ADMINISTRATIVELY CLOSED ORDER. Signed by Judge Ketanji Brown Jackson on 08/30/3018. (lckbj1) (Entered: 08/30/2018)
57 STIPULATION of Dismissal by DEPARTMENT OF JUSTICE. (Voltaire, Jean−Michel) (Entered: 10/12/2018)