Case 1:14-cv-00760-RMC Document 1 Filed 05/01/14 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER FOUNDATION

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1818 N Street, N.W.

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Suite 410

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Washington, DC 20036,

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Plaintiff,

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v.

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DEPARTMENT OF JUSTICE

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950 Pennsylvania Avenue, N.W.

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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, for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of records requested from Defendant Department of Justice and its component, National Security Division. The requested records concern significant opinions and orders of the federal courts concerning national security surveillance law and the Constitution, as well as other associated documents. 2. The requested records concern an “actual or alleged [f]ederal [g]overnment activity” about which there is an “urgency to inform the public,” and the requests were “made by a person primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(i)(I), (v)(II); 28 C.F.R. § 16.5(d)(1)(ii). The requested records also involve a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(i)(II); 28 C.F.R. § 16.5(d)(1)(iv).

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JURISDICTION AND VENUE 3. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
PARTIES 4. Plaintiff Electronic Frontier Foundation (EFF) is a not-for-profit corporation established under the laws of the Commonwealth of Massachusetts, with offices in San Francisco, California and Washington, D.C. EFF is a member-supported organization working to inform policymakers and the general public about civil liberties issues related to technology and to act as a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and disseminate information concerning the activities of federal agencies. 5. Defendant Department of Justice (DOJ) is a Department of the Executive Branch of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). The National Security Division (NSD) is a component of Defendant DOJ.
FACTUAL ALLEGATIONS 6. Since June 2013, the country has engaged in the most substantial public debate on national security surveillance since the 1970s and the proceedings of the Church Committee. 7. That debate continues to today, with multiple bills pending in both houses of Congress concerning national security surveillance reform. 8. In an effort to inform the public and to provide information for that debate, Plaintiff Electronic Frontier Foundation has requested, through FOIA, that certain specific opinions and orders of the Foreign Intelligence Surveillance Court (“FISC”) be made public. 9. For example, on August 21, 2013, the Department of Justice released to EFF a redacted version of a memorandum opinion of the FISC, dated October 3, 2011 (“October 3 Opinion”). 10. The October 3 Opinion is the subject of a FOIA lawsuit currently pending before
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this Court. See EFF v. Dep’t of Justice, 12-1441 (ABJ) (filed Aug. 30, 2012). 11. Despite the publication of the October 3 Opinion, many significant opinions of
the FISC remain secret. 12. The October 3 Opinion references a number of opinions and orders of the FISC
which have not yet been made available to the public. 13. In addition, a March 11, 2014 article in the New York Times described other,
still-secret FISC opinions. See Charlie Savage and Laura Poitras, How A Court Secretly Evolved, Extending U.S. Spies’ Reach, N.Y. Times (Mar. 11, 2014).
14. This lawsuit seeks public access to those, and other, still-secret and significant surveillance decisions issued by the FISC, the Foreign Intelligence Surveillance Court of Review (“FISCR”), and the United States Supreme Court.
Plaintiff’s FOIA Requests and Requests for Expedited Processing 15. By letter dated August 23, 20121 (“Cardozo Request”), Plaintiff submitted a FOIA request for certain FISC opinions and orders referenced within the October 3 Opinion. 16. By separate letter dated October 31, 2013 (“First Rumold Request”), Plaintiff submitted a FOIA request for certain specific and significant FISC opinions, orders, and related documents. 17. By separate letter dated February 24, 2014 (“Second Rumold Request”), Plaintiff submitted a FOIA request for any non-public opinions, orders, and related filings of the FISCR and any opinion, order, or related filing of the United States Supreme Court in an appeal taken from the FISCR. 18. By separate letter dated March 14, 2014 (“Third Rumold Request”), Plaintiff submitted a FOIA request for certain specific FISC opinions, orders, and related filings described in the March 11, 2014 New York Times article, as described above. At least one of those opinions was referenced within the October 3 Opinion.
1 The letter was inadvertently dated 2012; however, it was submitted on August 23, 2013.
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19. In each of its requests, Plaintiff also formally sought the expedited processing of its requests because they pertain to information about which there is “[a]n urgency to inform the public about an actual or alleged federal government activity,” and the requests were “made by a person primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(i)(I), (v)(II); 28 C.F.R. § 16.5(d)(1)(ii). Plaintiff also requested expedited processing because the requests involve a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(i)(II); 28 C.F.R. § 16.5(d)(1)(iv).
20. Plaintiff also requested a waiver of all fees associated with the processing and release of the requested records.
21. By email on September 3, 2013, NSD acknowledged receipt of the Cardozo Request. NSD granted the request for expedited processing sought by the Cardozo Request.
22. By letter dated November 29, 2013, NSD acknowledged receipt of the First Rumold Request. By letter dated December 11, 2013, NSD granted the request for expedited processing sought by the First Rumold Request.
23. By email on February 26, 2014, NSD acknowledged receipt of the Second Rumold Request. By letter dated April 3, 2014, NSD granted the request for expedited processing sought by the Second Rumold Request.
24. By letter dated March 27, 2014, NSD acknowledged receipt of the Third Rumold Request. By letter dated April 10, 2014, NSD granted the request for expedited processing sought by the Third Rumold Request.
25. To date, and despite granting each of Plaintiff’s requests for expedited processing, NSD has not yet released a single document responsive to these FOIA requests.
26. Not only has Defendant failed to expedite the processing of Plaintiff’s requests, it has also exceeded the generally applicable twenty-day deadline for the processing of any FOIA request.
27. Plaintiff has exhausted the applicable administrative remedies with respect to all
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of its FOIA requests referenced herein. 28. Defendant has wrongfully withheld the requested records from Plaintiff. CAUSES OF ACTION Violation of the Freedom of Information Act for Failure to Expedite Processing 29. Plaintiff repeats and realleges paragraphs 1-28. 30. Defendant has violated the FOIA by failing to expedite the processing of
Plaintiff’s FOIA requests. 31. Plaintiff has exhausted the applicable administrative remedies with respect to
Defendant’s failure to expedite the processing of Plaintiff’s requests. 32. Plaintiff is entitled to injunctive relief with respect to the expedited processing of
the requested agency records. Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records
33. Plaintiff repeats and realleges paragraphs 1-28. 34. Defendant has wrongfully withheld agency records requested by Plaintiff by failing to comply with the statutory time limit for the processing of FOIA requests. 35. Plaintiff has exhausted the applicable administrative remedies with respect to Defendant’s wrongful withholding of the requested records. 36. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested documents.
REQUESTED RELIEF WHEREFORE, Plaintiff prays that this Court:
1. order Defendant and its components to process immediately the requested records in their entirety;
2. order Defendant and its components, upon completion of such expedited processing, to disclose the requested records in their entirety and make copies available to Plaintiff;
3. order Defendant and its components to waive all fees associated with the
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processing and release of the requested records; 4. provide for expeditious proceedings in this action; 5. award Plaintiff its costs and reasonable attorneys fees incurred in this action; and 6. grant such other relief as the Court may deem just and proper.

DATED: May 1, 2014

Respectfully submitted,

D.C. Bar No. 360418 Electronic Frontier Foundation 1818 N Street, N.W. Suite 410 Washington, D.C. 20036 (202) 246-6180
NATE CARDOZO (admitted in California) JENNIFER LYNCH (admitted in California) MARKRUMOLD (admitted in California) Electronic Frontier Foundation 815 Eddy Street San Francisco, California 94109 (415) 436-9333
Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION

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 Case 1:14-cv-00760-RMC Document 9 Filed 08/08/14 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

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ELECTRONIC FRONTIER

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FOUNDATION,

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Plaintiff,

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v.

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DEPARTMENT OF JUSTICE,

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Defendant.

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____________________________________)

Civil Action No. 14-760-RMC

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION INTRODUCTION
Plaintiff, Electronic Frontier Foundation (“EFF” or “Plaintiff”), seeks an extraordinary, emergency injunction compelling Defendant, the Department of Justice ( “the Department”), to complete within ten days the processing of four separate Freedom of Information Act (“FOIA”) requests seeking classified documents related to the government’s foreign intelligence collection activities. In the wake of last year’s unauthorized disclosures of classified information concerning those activities, the government has declassified certain information. Other information concerning the government’s foreign intelligence collection remains properly classified and therefore exempt under FOIA. Thus, the processing of Plaintiff’s four requests entails a highly-coordinated and time-intensive effort among the various components of the Intelligence Community to ensure that any properly classified information remains so. Accordingly, Plaintiff’s request for an order compelling that effort to be confined to ten days is clearly unreasonable but, in any event, is not compelled by FOIA or warranted
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under Rule 65 of the Federal Rules of Civil Procedure. Although styled a motion for preliminary injunction, Plaintiff effectively wants this Court to
provide it full relief on the merits. Yet, Plaintiff has not come close to satisfying the heightened standard required for such a mandatory injunction that alters, rather than preserves, the status quo pending the Court’s merits determination. Indeed, Plaintiff’s request for an injunction is predicated on the mistaken view that, because the Department granted expedited processing for the four subject FOIA requests, EFF is entitled to receive the requested records within a set time frame. Under FOIA, however, such processing only entitles Plaintiff to processing of its requests “as soon as practicable,” which the Department has and continues to provide to Plaintiff. Because Plaintiff does not have any evidence to the contrary, Plaintiff is unlikely to succeed on the merits of its claim, which is fatal to its request for a preliminary injunction. On that basis alone, Plaintiff’s motion should be denied.
As to the other elements of proof – irreparable injury, balance of interests, and the public interest – Plaintiff fares no better. Plaintiff contends that without the requested injunction, Plaintiff will suffer two alleged irreparable injuries – erosion of its statutory rights under FOIA, and obstruction of Plaintiff’s participation in the ongoing legislative debate on surveillance reform. Neither alleged injury, however, is irreparable. The first alleged injury, like Plaintiff’s merits arguments, is based on an erroneous statutory interpretation. The second alleged injury is based on Plaintiff’s speculation that the requested records contain non-exempt information and that the information is not already in the public domain and has bearing on legislation now pending in Congress. Such unsubstantiated speculation, however, is insufficient to meet Plaintiff’s burden here.
Finally, Plaintiff cannot demonstrate that a mandatory injunction is in the public interest or that the balance of interests favors such relief. Here again, Plaintiff rests on its contention that release of the requested records will promote public understanding about the government’s surveillance activities and
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facilitate public participation in legislative reform related thereto. Underlying that contention is the same speculation about the contents of those records. Moreover, forcing the Department to process Plaintiff’s FOIA requests on an artificial timeline, rather than as soon as practicable as required by the statute, would upset Congress’s careful balance under FOIA, risk inadvertent disclosure of exempt classified material, and disadvantage those FOIA requesters whose requests were expedited prior to Plaintiff’s – all to the detriment of the public interest.
Plaintiff plainly seeks to use the vehicle of a preliminary injunction motion to accelerate artificially – and without justification – the proceedings in this case. The Court should not indulge that improper litigation tactic. Plaintiff’s motion accordingly should be denied.
STATUTORY BACKGROUND Agencies ordinarily process FOIA requests for agency records on a first-in, first-out basis. In 1996, Congress amended FOIA to provide for “expedited processing” of certain categories of requests. See Electronic Freedom of Information Act Amendments of 1996 (“EFOIA”), Pub. L. No. 104-231, § 8, 110 Stat. 3048 (codified at 5 U.S.C. § 552(a)(6)(E)). Expedition, when granted, entitles requesters to move immediately to the front of an agency’s processing queue, ahead of requests submitted earlier by other requesters. As part of EFOIA, Congress directed agencies to promulgate regulations providing for expedited processing of requests for records (i) “in cases in which the person requesting the records demonstrates a compelling need,” (5 U.S.C. § 552(a)(6)(E)(i)(I)); and (ii) “in other cases determined by the agency.” Id. § 552(a)(6)(E)(i)(II). FOIA defines “compelling need” to mean: (I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or
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alleged Federal Government activity.
5 U.S.C. § 552(a)(6)(E)(v).1 The requester bears the burden of showing that expedition is appropriate. See Al-Fayed, 254 F.3d at 305 n.4. FOIA provides that “[a]n agency shall process as soon as practicable any request for records to which the agency has granted expedi[tion].” 5 U.S.C. § 552(a)(6)(E)(iii).
The Department implemented EFOIA by final rule effective July 1, 1998. See Revision of Freedom of Information Act & Privacy Act Regulations & Implementation of Electronic Freedom of Information Act Amendments of 1996, 63 Fed. Reg. 29591 (1998), codified at 28 C.F.R. Part 16. That regulation, which governs FOIA requests to all Department components, (see 28 C.F.R. § 16.1(b)), provides that “[r]equests and appeals” will be “taken out of order and given expedited treatment whenever it is determined that they involve”:
(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or (iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government’s integrity which affect public confidence. 28 C.F.R. § 16.5(d)(1)(i)-(iv). Categories (i) and (ii) implement FOIA’s “compelling need”
1 Both Congress and the D.C. Circuit have recognized that these categories are to be “narrowly applied” because, “[g]iven the finite resources generally available for fulfilling FOIA requests, unduly generous use of the expedited processing procedure would unfairly disadvantage other requesters who do not qualify for its treatment.” Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.A.A.N. 3448, 3469).
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standard; categories (iii) and (iv) define additional categories for expedition.2 See 63 Fed. Reg. at 29592.
Within ten calendar days of receiving a request for expedited processing, the component must “decide whether to grant it and . . . notify the requester of the decision.” 28 C.F.R. § 16.5(d)(4); see also 5 U.S.C. § 552(a)(6)(E)(ii)(I) (requiring notice of decision within ten days of request). If the request is granted, “the request shall be given priority and shall be processed as soon as practicable.” 28 C.F.R. § 16.5(d)(4). If the request is denied, “any appeal of that decision shall be acted on expeditiously.” Id.; see also 5 U.S.C. § 552(a)(6)(E)(ii)(II) (requiring “expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing”).
FACTUAL BACKGROUND In June 2013, a former government contractor disclosed, without authorization, classified information about the government’s foreign intelligence collection activities pursuant to the Foreign Intelligence Surveillance Act (“FISA”), as amended. In the wake of those disclosures, and in order to correct misinformation and to reassure the American public as to the numerous safeguards that protect privacy and civil liberties, the President directed the Director of National Intelligence (“DNI”) to determine what additional information regarding the rationale, protections, and nature of those collection activities could be disclosed consistent with the need to prevent further harm to the national security. In particular, the DNI was directed to review opinions of the Foreign Intelligence Surveillance Court (“FISC”) and government filings submitted to that court to determine what information could be declassified. Since then, the Intelligence Community has been engaged in a large-scale, multi-agency review process, led by the Office of the DNI, to review such materials. That review has required
2 Requests for expedition based on categories (i), (ii), and (iii) must be submitted to the component that maintains the records requested. See 28 C.F.R. § 16.5(d)(2). Requests for expedition based on category (iv) – the Department’s “special media-related standard,” (see 63 Fed. Reg. at 29592) – must be submitted to the Director of the Department’s Office of Public Affairs. See 28 C.F.R. § 16.5(d)(2). That enables “the Department’s media specialists [to] deal directly with matters of exceptional concern to the media.” 63 Fed. Reg. at 29592.
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each component of that community to consider every piece of information identified for possible declassification and to anticipate the ramifications that such declassification might have on the particular component’s operations, including the ability to gather intelligence in the future. Such consideration must take into account not only the universe of currently classified information, but all of the information already in the public domain, because any additional disclosure might allow our adversaries to connect pieces of information to create “an even more revealing picture of our nation’s intelligence capabilities.” Out of this interagency effort, some information has been declassified and made publicly available on a public website (www.icontherecord.tumblr.com). Certain information, however, continues to remain classified.3
Against this background, Plaintiff submitted four separate FOIA requests to the Department’s National Security Division (“NSD”) seeking various opinions and submissions to the FISC. See generally Declaration of Kevin G. Tiernan, attached hereto as Exhibit B.
On August 23, 2013, Plaintiff submitted a FOIA request for the following:
(1) The “separate order” or orders, as described in footnote 15 of the October 3 Opinion quoted above, in which the Foreign Intelligence Surveillance Court “address[ed] Section 1809(a) and related issues”; and,
(2) The case, order, or opinion whose citation was redacted in footnote 15 of the October 3 Opinion and described as “concluding that Section 1809(a)(2) precluded the Court from approving the government’s proposed use of, among other things, certain data acquired by NSA without statutory authority through its ‘upstream collection.’”
See Declaration of David L. Sobel in Supp. of Pl.’s Mot. for Prelim. Inj. (“Sobel Decl.”) Ex. 1,
Aug. 1, 2014, ECF No. 8-2. NSD assigned that request NSD FOIA #13-250. On September 3,
2013, NSD emailed an acknowledgement of that request and also granted EFF’s request for
expedited processing.
3 See generally the Supplemental Declaration of Jennifer L. Hudson (“Hudson Supp. Decl.”) that originally was submitted ex parte and in camera in support of the government’s cross-motion for summary judgment in EFF v. Department of Justice, Case No. 12-1441 (D.D.C.). A copy of the publicly filed redacted copy of that declaration is attached hereto as Exhibit A.
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By letter dated October 31, 2013, EFF submitted the second of the subject FOIA
requests. That request sought:
(1) The January 10, 2007 order(s) and/or opinion(s) — including, but not limited to, any “foreign content order” or “domestic content order” — of the Foreign Intelligence Surveillance Court, including all legal memoranda, documents, briefings, minimization and targeting procedures, and/or policies incorporated within the Court’s January 2007 order(s) and/or opinion(s); and,
(2) Any subsequent order(s) and/or opinion(s) of the Foreign Intelligence Surveillance Court reconsidering, reinterpreting, refusing to renew, or otherwise altering the January 10, 2007 orders, and all accompanying documents, including legal memoranda, documents, briefings, minimization and targeting procedures, and/or policies incorporated within the Court’s order(s) and/or opinion(s).
Sobel Decl. Ex. 2. NSD assigned that request NSD FOIA #14-028. By letters dated November
29, 2013 and December 11, 2013, NSD, respectively, acknowledged receipt of the request and
granted EFF’s request for expedited processing.
By separate letter dated February 24, 2014, EFF submitted the third of the subject FOIA
requests, which sought:
(1) All written decisions, opinions, or orders issued by the Foreign Intelligence Surveillance Court of Review (“FISCR”);
(2) All written decisions, opinions, or orders issued by the Supreme Court in any case or matter appealed from the FISCR.
Sobel Decl. Ex. 3. NSD assigned that request NSD FOIA #14-066. NSD acknowledged receipt
of that request by email dated February 26, 2014. By letter dated April 3, 2014, NSD granted
EFF’s request for expedited processing.
The fourth of the subject FOIA requests was submitted by letter dated March 14, 2014
and requested the following:
(1) The “Raw Take” order (Dkt No. 02-431), dated July 22, 2002, and captioned “In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets;”
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(2) The “Large Content FISA” order(s) and/or opinion(s); (3) The September 4, 2008 FISC order(s) and/or opinion(s) concerning the
FISA Amendments Act; (4) All documents, including legal memoranda, declarations, briefs, or any
other document submitted by the government in support of items (1)-(3) above; and (5) All documents, including legal memoranda, declarations, briefs, or any other document incorporated, adopted within, or issued with items (1)-(3) above. Sobel Decl. Ex. 4. NSD assigned that request NSD FOIA #14-084. By letter dated March 27, 2014, NSD acknowledged receipt of the request. By letter dated April 10, 2014, NSD granted EFF’s request for expedited processing. Although NSD has commenced the search for records responsive to the four subject FOIA requests and certain responsive records are being processed, NSD has not yet produced any responsive information to Plaintiff. On May 1, 2014, EFF filed the instant FOIA action seeking an order compelling the Department to process the four FOIA requests immediately and to disclose the requested records in their entirety. See Compl. for Inj. Relief, May 1, 2014, ECF No. 1. The Department answered the Complaint on June 2, 2014. See Answer, June 2, 2014, ECF No. 5. Thereafter, counsel for the parties tried to negotiate a schedule for the continued processing of Plaintiff’s FOIA requests. The government offered to process within ninety days a subset of records that EFF prioritized from the four requests, but EFF insisted on interim deadlines within that ninety-day period, including an August deadline for one of the requested FISC opinions. After undersigned counsel advised that the government could not meet the proposed interim deadlines, Plaintiff filed the instant motion for preliminary injunction.
ARGUMENT In determining whether to grant a preliminary injunction, courts typically examine four factors “whether the moving party can demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an
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injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.” Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997); CityFed Fin. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). “The usual role of a preliminary injunction is to preserve the status quo pending the outcome of litigation.” Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006) (quotations omitted).
Here, however, Plaintiff seeks an injunction that “would alter, rather than preserve, the status quo,” i.e., a mandatory injunction. “[W]here an injunction is mandatory . . . 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 denial of the injunction.” Allina Health Servs. v. Sebelius, 756 F. Supp. 2d 61, 70 n.5 (D.D.C. 2010); see also EPIC v. Department of Justice, 2014 WL 521544, at *5 (D.D.C. Feb. 11, 2014) (same); Columbia Hosp., 15 F. Supp. 2d at 4 (same); National Conference on Ministry to Armed Forces v. James, 278 F. Supp. 2d 37, 43 (D.D.C. 2003) (same).4 Indeed, “[a]s a rule, ‘when a mandatory preliminary injunction is requested, the district court should deny such relief “unless the facts and law clearly favor the moving party.”’” Allina Health Servs., 756 F. Supp. 2d at 70 n.5 (emphasis added). Neither the facts nor the law clearly favor Plaintiff here. Thus, the instant motion should be denied.5
4 Although the D.C. Circuit has not yet addressed this heightened standard, several district courts have applied it to motions for mandatory injunctions. Even under the standard that applies to non-mandatory, preliminary injunctions, such relief is not warranted under the circumstances of this case. 5 Indeed, courts in this district routinely deny requests for preliminary relief in FOIA cases. See, e.g., Wadelton v. Department of State, 941 F. Supp. 2d 120, 124 (D.D.C. 2013); Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 279 (D.D.C. 2012) (denying PI to expedite processing where agency stated request is already at the top of the queue and requester failed to meet other PI prongs); Electronic Frontier Found. v. Department of Justice, 563 F. Supp. 2d 188, 196 (D.D.C. 2008) (granting Open America stay after denying PI); Al-Fayed v. CIA, 2000 WL 34342564, *6 (D.D.C. Sept. 20, 2000) (finding that “upon consideration of the parties’ arguments, the statutory and regulatory context, and the applicable case law,” emergency relief was not warranted despite the agency’s delay in
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I. PLAINTIFF IS UNLIKELY TO SUCCEED ON THE MERITS OF ITS CLAIM THAT THE DEPARTMENT FAILED TO EXPEDITE THE PROCESSING OF THE FOUR SUBJECT FOIA REQUESTS. Plaintiff contends that it is likely to prevail on the merits because expedited processing of
its FOIA requests should have been completed by now. See Mem. in Supp. of Pl.’s Mot. for Prelim. Inj. (“Pl.’s Mot.”) at 11, Aug. 1, 2014, ECF No. 8-1. That contention misapprehends FOIA’s expedited processing provision and the Department’s implementing regulations. FOIA directs agencies to “process as soon as practicable any request for records to which [they have] granted expedited processing.” 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added); see also 28 C.F.R. § 16.5(d)(4) (“If a request for expedited treatment is granted, the request shall be given priority and shall be processed as soon as practicable” (emphasis added)). As explained in the Senate Report accompanying the FOIA amendments that added the expedited processing procedures, the intent of the expedited processing provision was to give certain requests priority, not to require that such requests be processed within a specific period of time:
[Once] the request for expedit[ion] . . . is granted, the agency must then proceed to process that request “as soon as practicable.” No specific number of days for compliance is imposed by the bill since, depending upon the complexity of the request, the time needed for compliance may vary. The goal is not to get the request processed within a specific time frame, but to give the request priority for processing more quickly than otherwise would occur.
S. Rep. 104-272, 1996 WL 262861, at *17 (May 15, 1996) (emphasis added); see also H. R. Rep. No. 104-795, reprinted at 1996 U.S.C.A.A.N. 3448, 3461 (Sept. 17, 1996) (“[C]ertain categories of requesters would receive priority treatment of their requests . . . .”). Thus, FOIA’s expedited processing provision is an ordering mechanism that allows certain FOIA requesters to jump to the head of the line and avoid the ordinary “first in, first out” processing queue. Once a request is at
responding to FOIA requests). But see EPIC v. Department of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006) (granting PI but extending deadline to give agency the time necessary to process request).
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the front of the line, however, “practicability” is the standard that governs how quickly a particular request is processed. See Landmark Legal Found., 910 F. Supp. 2d at 279 (denying preliminary injunction to expedite processing where, inter alia, agency stated request is already at the top of its queue); see also American Civil Liberties Union v. Department of Justice, 321 F. Supp. 2d 24, 38 (D.D.C. 2004) (granting request for expedited processing and ordering that the Department “shall process plaintiffs’ requests for all records relating to section 215 consistent with 5 U.S.C. § 552(a)(6)(E)(iii) and 28 C.F.R. § 16.5(d)(4) (‘as soon as practicable’)”); Edmonds v. FBI, 2002 WL 32539613, at *4 (D.D.C. Dec. 3, 2002) (directing defendants to advise the Court “of the date when the request will be processed consistent with 5 U.S.C. § 552(a)(6)(E)(iii) and 28 C.F.R. § 16.5(d)(4) (‘as soon as practicable’)”).
Although conceding this statutory language, Plaintiff nevertheless contends that “an agency presumptively violates the ‘expedited processing’ provisions of the FOIA when it fails to comply with the generally applicable 20-working-day deadline.” Pl.’s Mot. at 12. That contention improperly relates two distinct and unrelated provisions of FOIA, the one governing expedited processing and the other triggering the administrative exhaustion requirement. The latter provision provides that an agency shall
determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such 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. 5 U.S.C. § 552(a)(6)(A)(i). According to Plaintiff, that twenty-day time limit provides a benchmark because “the phrase ‘as soon as practicable,’ in the context of a provision of FOIA allowing for expedited processing, cannot be interpreted to impose a lower burden on the agency than would otherwise exist.” Pl.’s Mot. at 12 (citing EPIC v. Department of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006)). Thus, Plaintiff suggests that the consequence of an agency’s
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failure to complete expedited processing within twenty days is the FOIA requester’s entitlement to the immediate production of the requested records. See Pl.’s Mot. at 13.
The D.C. Circuit, however, has rejected that suggestion.6 See CREW v. Federal Election Commission, 711 F.3d 180, 188 (D.C. Cir. 2013) (noting that “[u]nder the statutory scheme, a distinction exists between a ‘determination’ and subsequent production”); see also Navistar, Inc. v. EPA, 2011 WL 3743732, at *3-*5 (D.D.C. Aug. 25, 2011) (same). If an 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. In other words, the recourse is litigation in federal court, not immediate compelled production of the requested records. See EPIC, 2014 WL 521544, at *6. More importantly for purposes here, FOIA’s twenty-day provision plainly does not establish an outside time limit on what is “practicable” in responding to an expedited FOIA request.
Rather, what is practicable will vary depending on the size, scope, detail, and complexity of issues presented by the request; the number of offices with responsive documents; other agencies or components that must be consulted or to which documents must be referred; and whether the records contain classified information. See id. at *7 (identifying as factors bearing on practicability the number of prior requests granted expedited processing, the volume of classified information at issue, and competing national security obligations); see also Tiernan Decl. ¶ 13 (“The amount of work that can be completed on a given request depends on a variety of factors, including the complexity of the request, the amount of classified material contained in responsive documents, and how much coordination with other agencies is required.”). Here, such
6 Plaintiff’s reliance on EPIC v. Department of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006), is misplaced because that decision predates the D.C. Circuit’s decision in CREW v. Federal Election Commission and thus was not informed by that court’s interpretation of FOIA’s twenty-day provision. Despite granting a preliminary injunction, the court in EPIC recognized that the deadline plaintiff requested was not practical and extended the processing time to accommodate the agency.
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considerations belie Plaintiff’s claim that the Department has not expedited the processing of the four subject FOIA requests.
Following the unauthorized disclosures of national security information in June 2013, NSD’s FOIA office “experienced a surge in the number of FOIA requests received.” Tiernan Decl. ¶ 17. At the time that Plaintiff’s requests for expedited processing were granted, nine other requests that previously had been granted expedited processing were ahead in line; seven of the nine requests “involve particularly complex issues due to the subject matter, need for coordination with other agencies, or both.” See Tiernan Decl. ¶ 16. The processing of Plaintiff’s requests, because they seek records containing classified national security information, is particularly time-consuming and labor intensive because NSD must coordinate with multiple intelligence community agencies. See Tiernan Decl. ¶ 17. When information is classified by another component or agency “applicable law, Executive Order 13526, and Department of Justice regulations, require NSD to consult with th[e] original classifying entity before releasing the information under FOIA.” Tiernan Decl. ¶ 15. Moreover, the Office of Intelligence (“OI”), which is searching for and gathering the records responsive to Plaintiff’s requests, “has multiple responsibilities critical to national security” and thus the “time that OI employees can spend on plaintiff’s FOIA request, including searching for and gathering the responsive records, is [] constrained by the necessity that they perform their critical, and often time-sensitive, national security work.” Tiernan Decl. ¶ 18. Likewise, the Intelligence Community components, with whom OI and NSD must consult, are themselves involved in a large-scale, multi-agency undertaking to review and declassify FISC opinions and related materials in response to a directive from the President to “reassess the extent to which there may be information that can be released regarding the legal rational, protections, and nature of the oversight of th[e
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government’s foreign] surveillance program, consistent with the interests of national security.” Hudson Supp. Decl. ¶ 6; see also id. ¶ 9 (explaining that “the intelligence community is spread very thin in response to the many issues that have arisen in the wake of the unauthorized disclosures described above, including operational issues”). Thus, notwithstanding that the Department has not produced any records responsive to Plaintiff’s FOIA requests, “NSD is devoting appropriate resources and effort to processing plaintiff’s FOIA request[s] as soon as practicable.”7 Tiernan Decl. ¶ 19. Plaintiff, therefore, is unlikely to succeed on the merits of its unsubstantiated claim to the contrary. On that basis alone, the Court should deny Plaintiff’s motion. II. PLAINTIFF HAS NOT DEMONSTRATED THAT IT WILL SUFFER
IRREPARABLE HARM IN THE ABSENCE OF A MANDATORY INJUNCTION. “The basis of injunctive relief in the federal courts has always been irreparable harm.” CityFed Fin., 58 F.3d at 747 (citing Sampson v. Murray, 415 U.S. 61, 88 (1974)). This Circuit has “developed several well known and indisputable principles to guide [courts] in the determination of whether this requirement has been met.” Judicial Watch, Inc. v. United States Dep’t of Homeland Security, 514 F. Supp. 2d 7, 10 (D.D.C. 2007) (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). The injury “must be both ‘certain and great’ and ‘actual not theoretical.’” Judicial Watch, 514 F. Supp. 2d at 10. “Indeed, injunctive relief will not be granted ‘against something merely feared as liable to occur at some indefinite time in the future.’” Id. Thus, Plaintiff “must show that the injury complained of [is] of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm,” (id.), “in
7 See Tiernan Decl. ¶ 4 (estimating that the processing of Plaintiff’s FOIA request dated August 23, 2013 will be completed in 90 days); id. ¶ 7 (estimating that the processing of Plaintiff’s FOIA request dated October 31, 2013 will occur on a rolling basis with interim responses provided in 120-day intervals); id. ¶ 9 (estimating that NSD will provide a partial response to Plaintiff’s FOIA request dated February 24, 2014 within 30 days); id. ¶ 11 (anticipating that the processing of Plaintiff’s FOIA request dated March 14, 2014 will be on a rolling basis with interim responses provided at intervals).
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the sense that it is ‘beyond remediation,’” (EPIC, 2014 WL 521544, at *8 (emphasis added)). Plaintiff has not come close to making that demonstration here.
Plaintiff’s first alleged irreparable injury – erosion of its statutory rights under FOIA – is predicated on the same flawed premise as Plaintiff’s merits arguments, namely, that the Department has not expedited the processing of the four subject FOIA requests. See Pl.’s Mot. at 15 (alleging that “DOJ continues to deprive EFF of two statutory rights – its general right to a determination on its FOIA requests within 20 days and the right to expedited processing of those requests”). The uncontroverted evidence in the record, however, demonstrates that the Department has expedited the processing of Plaintiff’s FOIA requests. See Tiernan Decl. ¶ 12 (noting that “Plaintiff requested that all four requests be granted expedited processing, and all four were given this status” and as such were “given priority status and moved to the front of the NSD request queue”); see also id. ¶¶ 4, 6, 9, 11, 19. Although the Department did not meet the twentyday limit for its determinations, Plaintiff’s available recourse is a legal action in this Court and thus that alleged injury is not “beyond remediation,” (EPIC, 2014 WL 521544, at *8). See CREW, 711 F.3d at 284-85 (affirming that if an 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”). Thus, Plaintiff’s alleged statutory violations hardly constitute an irreparable injury warranting a preliminary injunction.
Plaintiff’s other alleged injury – impaired participation in the public debate on surveillance reform – fares no better. That alleged injury is entirely speculative and thus fails to satisfy the requirement that irreparable injury be “certain and great.” Judicial Watch, 514 F. Supp. 2d at 10. As an initial matter, Plaintiff assumes that the processing of its FOIA requests will result in the release of information. That result is not certain given that the records concern the government’s
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foreign intelligence collection activities, details of which remain classified. See The Nation Magazine v. Department of State, 805 F. Supp. 68, 74 (D.D.C. 1992) (denying motion for preliminary injunction on the ground that plaintiffs had failed to demonstrate irreparable harm because “[e]ven if this Court were to direct the speed up of processing of their requests, [plaintiffs] have not shown at this time that they are entitled to the release of the documents they seek”). “To the contrary, it is undisputed that at least some of the documents [or, at a minimum, information contained therein] are probably exempt from production under the FOIA.” See id.; see, e.g., Pl.’s Mot. at 19 (characterizing the four subject FOIA requests as seeking to “uncover only the most significant and still-secret opinions governing intelligence community surveillance” (emphasis added)).
Plaintiff moreover assumes that any information NSD releases after processing the four subject FOIA requests will be new and add to the public debate on surveillance. But, in the wake of the unauthorized disclosure in June 2013 of classified information concerning the government’s foreign intelligence activities, the government “ordered the declassification of certain information regarding [its] collection program[s].” Hudson Supp. Decl. ¶ 5. Thereafter, at the direction of the President, the Intelligence Community has continued to review information, including FISC opinions and filings such as those sought by Plaintiff, to determine what information can be “declassified and released, consistent with the national security, for the purposes of restoring public confidence, fostering public debate, and providing the public with a clear understanding of the legal rationale and protections surrounding such programs.”8 See id. ¶ 7. Throughout that process, the government has added information to the public debate. See generally www.icontherecord.tumblr.com. Thus, any additional disclosure of information on the
8 Plaintiff erroneously attributes the government’s prior release of information concerning its foreign intelligence collection to two lawsuits brought by Plaintiff. See Pl.’s Mot. at 3-4.
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government’s foreign intelligence collection programs “might allow our adversaries to fit new pieces of information together with those already in the public domain to create an even more revealing picture of our nation’s intelligence capabilities.” Hudson Supp. Decl. ¶ 8. For that reason, it is far from certain that any disclosures yielded by Plaintiff’s FOIA requests will be new, as opposed to cumulative. In an effort to bolster its claim, Plaintiff invokes the fact that on July 29, 2014, the Chairman of the Senate Judiciary Committee “introduced a comprehensive surveillance reform bill in the Senate.” Pl.’s Mot. at 5. Plaintiff, however, does not contend – let alone demonstrate – that any of the requested documents directly bear on any provision of that proposed legislation.
Finally, Plaintiff’s suggestion that the “contributive value” of the requested records will be diminished or stale if released later is undermined by Plaintiff’s own evidence. See Pl.’s Mot. at 17 (contending that this “risk is not merely hypothetical” rather “EFF recently witnessed, first hand, the effect of delay on the value of information to a legislative debate”). According to Plaintiff, in EFF v. Department of Justice, 12-01441-ABJ, the government produced responsive records after Congress reauthorized legislation to which they pertained. Nevertheless, according to Plaintiff, those records “have been widely reported by major media outlets,” “have added critical information to the public debate,” and “[a]s a result of this ongoing national debate, significant legislative changes to the nation’s surveillance laws appear imminent.” Pl.’s Mot. at 4. Thus, the contributive value was not lost by any failure of the government to produce records on Plaintiff’s preferred timetable. As another district court observed, under similar circumstances, Plaintiff’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
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permits government agencies to withhold certain requested documents and to engage in subsequent litigation over them, without regard to the resulting production delay.” EPIC, 2014 WL 521544, at *9. Plaintiff thus has failed to demonstrate the requisite irreparable injury necessary for a preliminary injunction to issue. III. THE MANDATORY EMERGENCY INJUNCTION PLAINTIFF SEEKS WOULD
HARM THE PUBLIC INTEREST. In support of the remaining elements of its proof here, Plaintiff recycles its argument that the requested injunction would enforce FOIA’s statutory requirements and facilitate the public’s participation in the surveillance reform process, (see Pl.’s Mot. at 18, 19). But see Wadelton, 941 F. Supp. 2d at 124 (“Plaintiffs argue that a preliminary injunction will be in the public interest, based on little more than the core purpose of FOIA being to ‘allow the public to be informed about “what their government is up to”’ . . . . This explanation does nothing to distinguish plaintiffs’ FOIA request from any other FOIA request. Therefore, the Court finds that plaintiffs fail to satisfy the public interest prong.” (citations omitted)). Plaintiff’s effort to impose an artificial time frame on the Department’s processing of the four subject FOIA requests plainly ignores the realities attendant to that processing, including the “extensive coordination with multiple agencies.” Tiernan Decl. ¶ 17; see also id. ¶ 15 (explaining that because “[m]ost if not all of the records responsive to plaintiff’s requests contain classified national security information,” NSD must “consult with th[e] original classifying entity before releasing [] information under FOIA”). Moreover, Plaintiff’s requested relief threatens to compromise the delicate balance that Congress struck in FOIA between, on the one hand, the general interest in disclosing information about government activities, and, on the other hand, the necessity of ensuring that certain types of documents (i.e., those exempt under FOIA) not be produced. The exemptions listed in FOIA’s
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Section 552(b) embody a judgment by Congress that the public interest would best be served by allowing the agencies to withhold certain records – for example, those records whose disclosure would interfere with other vital public interests such as national security, (5 U.S.C. § 552(b)(1)); efficient and frank intra- and inter-agency deliberations and attorney-client communications, (5 U.S.C. § 552(b)(5)); or effective law enforcement, (5 U.S.C. § 552(b)(7)). Congress specifically noted that even with respect to expedited requests, in certain cases, depending on the subject matter of the request, additional time might be required to ensure that the public’s interest in preventing public disclosure of exempt documents is not compromised. See H. R. Rep. No. 104795, at 23 (1996), 1996 U.S.C.A.A.N. at 3466 (“In underscoring the requirement that agencies respond to requests in a timely manner, the Committee does not intend to weaken the interests protected by the FOIA exemptions. Agencies processing some requests may need additional time to adequately review requested material to protect those exemption interests. For example, processing some requests may require additional time in order to properly screen material against the inadvertent disclosure of material covered by the national security exemption”). As Congress acknowledged, those concerns are only heightened in a case such as this one, where numerous classified documents are at issue, and the Department has independent obligations under federal regulations and Executive Order to ensure that no unwarranted disclosure occurs. See id. Thus, an order requiring the Department to disclose documents on Plaintiff’s artificial timetable (rather than “as soon as practicable”) would harm the balance of such competing public interests. See Judicial Watch, 514 F. Supp. 2d at 11 (observing that “[g]iven the finite resources of these agencies, requiring them to search for documents that may ultimately be found to be protected, or to have already been produced, is clearly contrary to the public’s interest”).
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Finally, and not insignificantly, Plaintiff’s requested relief would disadvantage those FOIA requesters granted expedited processing before Plaintiff, as compliance with a mandatory injunction would require that resources be diverted from those other requests, thereby disturbing their rightful place in NSD’s expedited queue. See EPIC, 2014 WL 521544, at *10 (observing that “[g]iven 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 pressing needs”). Plaintiff therefore has not, and indeed cannot, meet its burden on the remaining elements of a mandatory injunction. IV. PLAINTIFF’S REQUESTED MANDATORY INJUNCTION IS IMPROPER
BECAUSE IT WOULD AFFORD PLAINTIFF FULL RELIEF, NOT INTERMEDIATE RELIEF. Preliminary injunctive relief is not intended to provide plaintiffs with a means to bypass merits litigation. Therefore, a preliminary injunction should not work to give a party essentially the full relief it seeks on the merits. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“[I]t is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits.”); Dorfmann v. Boozer, 414 F.2d 1168, 1173 n.13 (D.C. Cir. 1969) (“[A] preliminary injunction should not work to give a party essentially the full relief he seeks on the merits.”). As evident from Plaintiff’s actions here, however, that is precisely what it seeks: an injunction compelling the immediate production of responsive documents to Plaintiff. Compare Pl.’s Mot. at 21 (contending that “[u]nder these circumstances, the appropriate form of relief is clear: the Court should order the government to reach a determination on disclosure, followed shortly thereafter by disclosure of the requested records”) with Compl. at 5-6 (“Requested Relief”). Because that is an inappropriate use of a preliminary injunction, the Court should not allow it and deny Plaintiff’s motion on that alternative ground.
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CONCLUSION

For the foregoing reasons, the Department respectfully requests that the Court deny

Plaintiff’s Motion for Preliminary Injunction.

Dated: August 8, 2014

Respectfully submitted,

STUART F. DELERY Assistant Attorney General

ELIZABETH J. SHAPIRO Deputy Branch Director Civil Division

/s/ Jacqueline Coleman Snead JACQUELINE COLEMAN SNEAD (D.C. Bar 459548) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, D.C. 20530 Telephone: (202) 514-3418 Fax: (202) 616-8470 E-mail: Jacqueline.Snead@usdoj.gov

Counsel for the Department of Justice

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ELECTRONIC FRONTIER

)

FOUNDATION,

)

)

Plaintiff,

)

)

v.

)

)

)

DEPARTMENT OF JUSTICE,

)

)

Defendant.

)

)

____________________________________)

Civil Action No. 14-760-RMC

PROPOSED ORDER

Upon consideration of Plaintiff’s Motion for Preliminary Injunction, the opposition

thereto, and the complete record in this case, it is hereby

ORDERED that Plaintiff’s motion is DENIED.

SO ORDERED.

Date: ________

____________________________ United States District Court Judge

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 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 15-5346 (C.A. No. 14-cv-00760-RMC)
Electronic Frontier Foundation, Plaintiff-Appellant,
v. U.S. Department of Justice,
Defendant-Appellee.
UNDERLYING DECISION FROM WHICH THIS APPEAL ARISES

Case 1:14-cv-00760-RMC Document 22 Filed 10/30/15 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________

)

ELECTRONIC FRONTIER

)

FOUNDATION,

)

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF JUSTICE,

)

)

Defendant.

)

_________________________________ )

Civil Action No. 14-760 (RMC)

OPINION Plaintiff Electronic Frontier Foundation seeks the production of an opinion of the Foreign Intelligence Surveillance Court under the Freedom of Information Act. The document is exempt from disclosure under Exemptions 1 and 3 because the opinion is properly classified and because its disclosure is prohibited by statute. Summary judgment will be entered in favor of the Department of Justice.
I. FACTS Electronic Frontier Foundation (EFF) is a non-profit corporation whose mission is to inform policymakers and the public about civil liberty issues related to technology and to defend such liberties. Compl. [Dkt. 1] ¶ 4. “In support of its mission, EFF uses the Freedom of Information Act to obtain and disseminate information concerning the activities of federal agencies.” Id. EFF submitted four requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the National Security Division of the Department of Justice (DOJ): (1) August 23, 2013 request seeking disclosure of two Foreign Intelligence Surveillance Court (FISC) opinions;
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(2) October 31, 2013 request seeking disclosure of two FISC opinions and associated documents;
(3) February 24, 2014 request seeking disclosure of any still secret Foreign Intelligence Court of Review (FISCR) decisions and any opinion and orders of the U.S. Supreme Court in any matter appealed from the FISCR; and
(4) March 14, 2014 request seeking disclosure of three separate FISC opinions and related documents. DOJ granted EFF’s request for expedited processing on April 10, 2014,1 and EFF filed this suit
on May 1, 2014. DOJ produced various documents, and EFF withdrew most of its requests. At
this point, EFF challenges only the withholding of a single document––a specific FISC opinion.2
The opinion in question, referred to here as the Section 1809 Opinion, held that 50
U.S.C. § 1809(a)(2) precluded the FISC from approving the Government’s proposed use of
certain data acquired by the National Security Agency (NSA) without statutory authority through
“Upstream” collection.3 EFF is aware of the holding of the Section 1809 Opinion because it was
referenced in an October 3, 2011 FISC opinion4 that was released to EFF in the course of a
1 FOIA requires agencies to provide expedited processing of requests for records (1) where the requester has demonstrated a compelling need or (2) where the agency determines expedition is appropriate. 5 U.S.C. § 552(a)(6)(E). DOJ’s regulations provide for expedited processing where, for example, there is an urgency to inform the public about alleged government activity, there is loss of a substantial due process right, or there is widespread and exceptional media interest regarding a question of government integrity. 28 C.F.R. § 16.5(e)(1). 2 Because EFF has conceded the withholding of all other documents, its cross motion for summary judgment is a partial motion. 3 “Upstream” collection refers to the acquisition of Internet communications as they transit the “internet backbone,” i.e., principal data routes via internet cables and switches of U.S. internet service providers. See [Caption Redacted], 2012 WL 9189263, *1 (FISC Aug. 24, 2012); see also https://en.wikipedia.org/wiki/Upstream_collection (last visited Oct. 19, 2015); https://en.wikipedia.org/wiki/Internet_backbone (last visited Oct. 19, 2015). 4 The October 3, 2011 FISC opinion, authored by Judge John Bates and released in August 2013, stated:
2

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different FOIA lawsuit–– Electronic Frontier Foundation v. DOJ, 57 F. Supp. 3d 54 (D.D.C. 2014). In that FOIA suit, Judge Amy Berman Jackson held that DOJ properly withheld the citation to the Section 1809 Opinion because the information was classified and exempt from disclosure under FOIA Exemption 1. Id. at 61.
DOJ seeks summary judgment on the ground that the Section 1809 Opinion is subject to withholding under Exemptions 1 and 3. See Mot. for Summ. J. [Dkt. 15] (MSJ); DOJ Reply [Dkt. 18]. EFF filed a cross motion for partial summary judgment. See Cross Mot. for Summ. J. [Dkt. 17] (XMSJ); EFF Reply [Dkt. 20].
II. LEGAL STANDARD FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). Federal Rule of Civil Procedure 56 provides that summary judgment must be granted when “the movant shows 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted
The government’s revelations regarding the scope of NSA’s upstream collection implicate 50 U.S.C. § 1809(a), which makes it a crime (1) to “engage[ ] in electronic surveillance under color of law except as authorized” by statute or (2) to “disclose[ ] or use [ ] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized” by statute. See [redacted] (concluding that Section 1809(a)(2) precluded the Court from approving the government's proposed use of, among other things, certain data acquired by NSA without statutory authority through its “upstream collection”). The Court will address Section 1809(a) and related issues in a separate order. [Caption Redacted], 2011 WL 10945618, at *6 n.15 (FISC Oct. 3, 2011) (emphasis added).
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against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252.
In a FOIA case, the burden is on the agency to sustain its action and the district court must decide de novo whether an agency properly withheld information under a claimed exemption. 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). “The underlying facts are viewed in the light most favorable to the [FOIA] requester,” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983), and the exemptions are narrowly construed, FBI v. Abramson, 456 U.S. 615, 630 (1982). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt” from FOIA’s requirements. Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks and citation omitted).
A court may award summary judgment solely on the basis of information provided by the department or agency in affidavits describing “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project, 656 F.2d at 738; see also Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973). Affidavits submitted by
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the agency to demonstrate the adequacy of its response are presumed to be in good faith, Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), “which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents,” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
III. ANALYSIS A. Collateral Estoppel DOJ contends that EFF should be collaterally estopped from seeking the release of the Section 1809 Opinion because EFF already litigated, and lost, prior FOIA requests for (1) docket information regarding the Section 1809 Opinion, see Electronic Frontier Foundation v. DOJ, 57 F. Supp. 3d at 61, and (2) the identity of telecommunications service providers who participated in NSA’s call records collection program, see Electronic Frontier Foundation v. DOJ, Case No. 4:11-cv-5221-YGR, 2014 WL 3945646, at *5-7 (N.D. Cal. Aug. 11, 2014). Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of fact or law that was actually litigated and necessarily decided is conclusive in a subsequent action between the same parties or their privies. Allen v. McCurry, 449 U.S. 90, 94 (1980); Yamaha Corp. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1993); Johnson v. Duncan, 746 F. Supp. 2d 163, 168 (D.D.C. 2010). In this case, EFF seeks the release of the Section 1809 Opinion itself. Because
5

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the issue of DOJ’s withholding the Section 1809 Opinion has not been actually litigated and necessarily decided, collateral estoppel does not apply.5
B. Exemption 1 Under Exemption 1, FOIA does not require the production of records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). DOJ relies upon Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), which governs the classification and protection of national security information, to withhold the Section 1809 Opinion. Information can be properly classified under E.O. 13526 if four requirements are met: (1) an original classification authority has classified the information; (2) the United States Government owns, produces, or controls the information; (3) the information pertains to one or more of eight protected categories listed in Section 1.4 of the Executive Order, which include intelligence methods;6 and (4) the original
5 EFF has expressly agreed in this litigation not to seek docket information, the date of the Section 1809 Opinion, or the names or descriptions of surveillance targets. See MSJ at 6; EFF Reply at 2; Sherman Decl. [Dkt. 15-4] ¶ 9 n.1. 6 Section 1.4 of Executive Order 13526 describes the classification categories as follows:
Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;
6

Case 1:14-cv-00760-RMC Document 22 Filed 10/30/15 Page 7 of 12
classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. E.O. 13526 § 1.1(a). David Sherman, Associate Director for Policy and Records at the National Security Agency, submitted declarations in support of DOJ’s withholding of the Section 1809 Opinion. See Sherman Decl. [Dkt. 15-4]; Sherman Supp. Decl. [Dkt. 18-1]. Through these declarations, DOJ made an affirmative showing that (1) the Section 1809 Opinion was classified by an original classification authority, (2) the Opinion is owned, produced, or controlled by the U.S. Government, (3) the information pertains to three of the protected categories listed in Executive Order 13526––intelligence methods, foreign activities, and systems related to national security; and (4) disclosure could reasonably be expected to result in damage to national security. See Sherman Decl. ¶¶ 2, 15, 46-47, 52. Mr. Sherman explained that DOJ withheld the Section 1809
(d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or (h) the development, production, or use of weapons of mass destruction. E.O. 13526 § 1.4.
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Case 1:14-cv-00760-RMC Document 22 Filed 10/30/15 Page 8 of 12
Opinion in full under FOIA Exemption 1 “because the release of any portion of that document
would tend to reveal information that is currently and properly classified at the Top Secret level,
specifically, an intelligence method.” Sherman Supp. Decl. ¶ 8. With regard to the fact that
disclosure could be expected to result in damage to national security, Mr. Sherman indicated
that:
47. Specifically, the release of the redacted information would disclose sensitive operational details associated with NSA’s “Upstream” collection capability. While certain information regarding NSA’s “Upstream” collection capability has been declassified and publicly disclosed, certain other information regarding the capability remains currently and properly classified. The redacted information would reveal specific details regarding the application and implementation of the “Upstream” collection capability that have not been publicly disclosed. Revealing the specific means and methodology by which certain types of SIGINT collections are accomplished could allow adversaries to develop countermeasures to frustrate NSA’s collection of information crucial to national security. Disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national security. I have reviewed this information and determined that it is currently and properly classified as Top Secret and falls within Sections 1.4(c), 1.4(d), and 1.4(g) of E.O. 13526.
. . .
52. With respect to the FISC opinion withheld in full, it is my judgment that any information in the [Section 1809 Opinion] is classified in the context of this case because it can reasonably be expected to reveal classified national security information concerning particular intelligence methods, given the nature of the document and the information that has already been released. . . . In these circumstances, the disclosure of even seemingly mundane portions of this FISC opinion would reveal particular instances in which the “Upstream” collection program was used and could reasonably be expected to encourage sophisticated adversaries to adopt countermeasures that may deprive the United States of critical intelligence.
Sherman Decl. ¶¶ 47, 52.
8

Case 1:14-cv-00760-RMC Document 22 Filed 10/30/15 Page 9 of 12
Through the Sherman Declarations,7 DOJ has sustained its burden of showing that the Section 1809 Opinion is classified and that it properly withheld the document under FOIA Exemption 1.8 See Larson, 565 F.3d at 865 (“If 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 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.”).
EFF argues that while the Section 1809 Opinion was classified, it has been officially disclosed and thus it should be released. See Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (official disclosure of classified information overcomes an otherwise valid exemption claim). EFF insists that DOJ cannot continue to withhold the Section 1809 Opinion in full because “it has already officially acknowledged and described the content of the Opinion.” See Opp’n [Dkt. 16] at 8. The alleged official acknowledgement is the 2011 FISC opinion’s statement of the Section 1809 Opinion’s holding, i.e., that “Section 1809(a)(2) precluded the Court from approving the government's proposed use of, among other things,
7 The Court also reviewed the Classified Sherman Declaration and Classified Supplemental Sherman Declaration. See Notice [Dkt. 15-6] (DOJ lodged ex parte submission of Classified Sherman Declaration with Classified Information Security Officer); Notice [Dkt. 18-1] (DOJ lodged ex parte submission of Classified Supplemental Sherman Declaration with Classified Information Security Officer). 8 FOIA Exemption 3, 5 U.S.C. § 552(b)(3) protects from disclosure information that is exempted by another statute. Exemption 3 applies here as well. See Sherman Decl. ¶ 48 (the Section 1809 Opinion includes technical information about how NSA accomplishes its SIGINT mission, and thus it is protected from disclosure under Exemption 3 and under the National Security Act, 50 U.S.C. §§ 3605, 3024(i)(1), exempting from disclosure NSA functions, activities, intelligence sources, and methods); Sherman Supp. Decl. ¶ 13 (the Section 1809 Opinion is also protected from release under 18 U.S.C. § 798, which exempts communications intelligence activities and information obtained through communications intelligence).
9

Case 1:14-cv-00760-RMC Document 22 Filed 10/30/15 Page 10 of 12
certain data acquired by NSA without statutory authority through its ‘Upstream collection.’” [Caption Redacted], 2011 WL 10945618, at *6 n.15 (FISC Oct. 3, 2011).
Classified information may be disclosed over Government objection if the information has been “officially acknowledged,” that is, if (1) the same (2) specific information (3) already has been “made public through an official and documented disclosure.” Fitzgibbon, 911 F.2d at 765 (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)). “These criteria are important because they acknowledge the fact that in the arena of intelligence and foreign relations there can be a critical difference between official and unofficial disclosures.” Id. The D.C. Circuit has emphasized that “‘[p]rior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. This insistence on exactitude recognizes the Government’s vital interest in information relating to national security and foreign affairs.’” Am. Civil Liberties Union v. DoD, 628 F.3d 612, 621 (2011) (quoting Wolf, 473 F.3d at 378). Because the specific content of the Section 1809 Opinion has not been officially and publicly disclosed, the Opinion may be properly withheld under Exemption 1.
C. Segregability Even if an agency properly withholds responsive records under a FOIA exemption, it nevertheless must disclose any non-exempt information that is “reasonably segregable.” 5 U.S.C. § 552(b). “It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead, 566 F.2d at 260; see also Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999). A district court need not “order an agency to commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.” Mead, 566 F.2d at
10

Case 1:14-cv-00760-RMC Document 22 Filed 10/30/15 Page 11 of 12
261 n. 55. An agency cannot rely on mere conclusory statements that non-exempt material in a document is not reasonably segregable, but instead it must provide a reasonably detailed justification, except where “such a detailed justification . . . would itself compromise the secret nature of potentially exempt information.” Id. at 261. Nonetheless, “[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). A district court has “an affirmative obligation to consider segregability sua sponte.” Trans-Pacific Policing Agreement, 177 F.3d at 193.
EFF asserts that the legal analysis in the Section 1809 Opinion should be released because doing so would not implicate any legitimately withheld information. EFF surmises that the Section 1809 Opinion contains the following information that is not classified: FISC’s legal analysis of Section 1809(a)(2)’s preclusive effect, the statutory authority governing NSA surveillance, and NSA’s violation of that authority. See Opp’n at 9; see also id. at 10 (assuming that the Opinion contains “an analysis of the NSA’s statutory authority and that authority’s interaction with 50 U.S.C. § 1809”). EFF further hypothesizes that the Section 1809 Opinion contains information that was not properly classified.
EFF has not offered any support for these claims. The Court presumes that the Sherman affidavits were filed in good faith, see Ground Saucer Watch, 692 F.2d at 771, and this presumption is not rebutted by purely speculative claims, see SafeCard, 926 F.2d at 1200.
Further, EFF’s argument is substantially undermined by the reality that legal analysis is meaningless without facts. Legal analysis necessarily includes facts, and in this case those facts are classified. As Mr. Sherman indicated, the withheld information would reveal specific details regarding the application and implementation of the “Upstream” collection
11

Case 1:14-cv-00760-RMC Document 22 Filed 10/30/15 Page 12 of 12

capability and would reveal the specific means and methodology by which certain types of SIGINT collections are accomplished. Sherman Decl. ¶¶ 47, 52. Mr. Sherman stressed that “[i]n these circumstances, the disclosure of even seemingly mundane portions of this FISC opinion would reveal particular instances in which the ‘Upstream’ collection program was used and could reasonably be expected to encourage sophisticated adversaries to adopt countermeasures that may deprive the United States of critical intelligence.” Id. ¶ 52. See Larson, 565 F.3d at 864 (“Minor details of intelligence information may reveal more information than their apparent insignificance suggests because much like a piece of jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance itself.”) (internal quotations and citations omitted).
Relying on the Sherman Declarations, the Court finds that disclosure of any part of the Section 1809 Opinion could reasonably be expected to cause grave damage to national security. The document has been properly withheld in its entirety under Exemption 1.
IV. CONCLUSION For the reasons set forth above, the motion for summary judgment filed by the Department of Justice [Dkt. 15] will be granted, and the cross motion for partial summary judgment filed by the Electronic Frontier Foundation [Dkt. 17] will be denied. Judgment will be entered in favor of the Department of Justice. A memorializing Order accompanies this Opinion.

Date: October 30, 2015

/s/ ROSEMARY M. COLLYER United States District Judge

12

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29th day of January, 2016, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. I certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ David L. Sobel David L. Sobel
13

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 15-5346
Electronic Frontier Foundation, Appellant
v. United States Department of Justice,
Appellee

September Term, 2015
1:14-cv-00760-RMC Filed On: April 27, 2016 [1610758]

O R D E R
Upon consideration of appellant’s motion to dismiss the appeal, it is
ORDERED that the motion be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the United States District Court for the District of Columbia a certified copy of this order in lieu of formal mandate.
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Mark A. Butler Deputy Clerk

 
 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 15-5346 (C.A. No. 14-cv-00760-RMC)
Electronic Frontier Foundation, Plaintiff-Appellant,
v. U.S. Department of Justice,
Defendant-Appellee.
APPELLANT’S UNOPPOSED MOTION TO VOLUNTARILY DISMISS APPEAL
Plaintiff-Appellant Electronic Frontier Foundation (“EFF”) hereby moves the Court, pursuant to Fed. R. App. P. 42(b), to dismiss this appeal. In support of this motion, EFF states as follows:
(1) The opinion of the Foreign Intelligence Surveillance Court that EFF has sought through this appeal is already publicly available. Available at http://www.dni.gov/files/documents/1118/CLEANEDPRTT%202.pdf. This fact was not known to EFF prior to initiating the litigation or to filing this appeal.
(2) In light of the public availability of the opinion, EFF does not believe that its resources, the government’s resources, or this Court’s resources are well served by further, needless litigation.
1

No appeal briefs have been filed by either side.1 EFF requests that the Court grant the voluntary dismissal of this appeal, with each side to bear its own costs. Undersigned counsel has conferred with counsel for the Government and has been informed that the Government does not oppose the motion for a voluntary dismissal, with each side to bear its own costs.

Dated: April 8, 2016

Respectfully submitted,
/s/ David L. Sobel DAVID L. SOBEL Electronic Frontier Foundation 5335 Wisconsin Avenue, NW Suite 640 Washington, DC 20015 Phone: (202) 246-6180 Fax: (415) 436-9993
MARK RUMOLD Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 Phone: (415) 436-9333 Fax: (415) 436-9993
Counsel for Plaintiff-Appellant

1 Appellant’s opening brief is due on April 11, 2016. 2

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8 day of April, 2016 I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. I certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ David L. Sobel David L. Sobel
3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER FOUNDATION, )

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF JUSTICE,

)

)

Defendant.

)

__________________________________________)

C.A. 14-760-RMC

NOTICE OF APPEAL

Notice is given that plaintiff in the above-captioned action, Electronic Frontier

Foundation (“EFF”), hereby appeals to the United States Court of Appeals for the District of

Columbia Circuit from the District Court’s October 30, 2015 memorandum opinion and order

granting defendant’s motion for summary judgment and denying EFF’s cross-motion for partial

summary judgment under the Freedom of Information Act, 5 U.S.C. § 552.

December 24, 2015

Respectfully submitted,
/s/ David L. Sobel DAVID L. SOBEL D.C. Bar No. 360418 Electronic Frontier Foundation 5335 Wisconsin Ave. N.W., Suite 640 Washington, DC 20015 (202) 246-6180
MARK RUMOLD (admitted in California) Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94110 (415) 436-9333
Attorneys for Plaintiff
6

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________

)

ELECTRONIC FRONTIER

)

FOUNDATION,

)

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF JUSTICE,

)

)

Defendant.

)

_________________________________ )

Civil Action No. 14-760 (RMC)

OPINION Plaintiff Electronic Frontier Foundation seeks the production of an opinion of the Foreign Intelligence Surveillance Court under the Freedom of Information Act. The document is exempt from disclosure under Exemptions 1 and 3 because the opinion is properly classified and because its disclosure is prohibited by statute. Summary judgment will be entered in favor of the Department of Justice.
I. FACTS Electronic Frontier Foundation (EFF) is a non-profit corporation whose mission is to inform policymakers and the public about civil liberty issues related to technology and to defend such liberties. Compl. [Dkt. 1] ¶ 4. “In support of its mission, EFF uses the Freedom of Information Act to obtain and disseminate information concerning the activities of federal agencies.” Id. EFF submitted four requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the National Security Division of the Department of Justice (DOJ): (1) August 23, 2013 request seeking disclosure of two Foreign Intelligence Surveillance Court (FISC) opinions;
1

(2) October 31, 2013 request seeking disclosure of two FISC opinions and associated documents;
(3) February 24, 2014 request seeking disclosure of any still secret Foreign Intelligence Court of Review (FISCR) decisions and any opinion and orders of the U.S. Supreme Court in any matter appealed from the FISCR; and
(4) March 14, 2014 request seeking disclosure of three separate FISC opinions and related documents.
DOJ granted EFF’s request for expedited processing on April 10, 2014,1 and EFF filed this suit
on May 1, 2014. DOJ produced various documents, and EFF withdrew most of its requests. At
this point, EFF challenges only the withholding of a single document––a specific FISC opinion.2
The opinion in question, referred to here as the Section 1809 Opinion, held that 50
U.S.C. § 1809(a)(2) precluded the FISC from approving the Government’s proposed use of
certain data acquired by the National Security Agency (NSA) without statutory authority through
“Upstream” collection.3 EFF is aware of the holding of the Section 1809 Opinion because it was
referenced in an October 3, 2011 FISC opinion4 that was released to EFF in the course of a
1 FOIA requires agencies to provide expedited processing of requests for records (1) where the requester has demonstrated a compelling need or (2) where the agency determines expedition is appropriate. 5 U.S.C. § 552(a)(6)(E). DOJ’s regulations provide for expedited processing where, for example, there is an urgency to inform the public about alleged government activity, there is loss of a substantial due process right, or there is widespread and exceptional media interest regarding a question of government integrity. 28 C.F.R. § 16.5(e)(1). 2 Because EFF has conceded the withholding of all other documents, its cross motion for summary judgment is a partial motion.
3 “Upstream” collection refers to the acquisition of Internet communications as they transit the “internet backbone,” i.e., principal data routes via internet cables and switches of U.S. internet service providers. See [Caption Redacted], 2012 WL 9189263, *1 (FISC Aug. 24, 2012); see also https://en.wikipedia.org/wiki/Upstream_collection (last visited Oct. 19, 2015); https://en.wikipedia.org/wiki/Internet_backbone (last visited Oct. 19, 2015).
4 The October 3, 2011 FISC opinion, authored by Judge John Bates and released in August 2013, stated:
2

different FOIA lawsuit–– Electronic Frontier Foundation v. DOJ, 57 F. Supp. 3d 54 (D.D.C.
2014). In that FOIA suit, Judge Amy Berman Jackson held that DOJ properly withheld the
citation to the Section 1809 Opinion because the information was classified and exempt from
disclosure under FOIA Exemption 1. Id. at 61.
DOJ seeks summary judgment on the ground that the Section 1809 Opinion is
subject to withholding under Exemptions 1 and 3. See Mot. for Summ. J. [Dkt. 15] (MSJ); DOJ
Reply [Dkt. 18]. EFF filed a cross motion for partial summary judgment. See Cross Mot. for
Summ. J. [Dkt. 17] (XMSJ); EFF Reply [Dkt. 20].
II. LEGAL STANDARD FOIA cases are typically and appropriately decided on motions for summary
judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Moore v. Bush, 601 F. Supp. 2d
6, 12 (D.D.C. 2009). Federal Rule of Civil Procedure 56 provides that summary judgment must
be granted when “the movant shows 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); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted
The government’s revelations regarding the scope of NSA’s upstream collection implicate 50 U.S.C. § 1809(a), which makes it a crime (1) to “engage[ ] in electronic surveillance under color of law except as authorized” by statute or (2) to “disclose[ ] or use [ ] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized” by statute. See [redacted] (concluding that Section 1809(a)(2) precluded the Court from approving the government's proposed use of, among other things, certain data acquired by NSA without statutory authority through its “upstream collection”). The Court will address Section 1809(a) and related issues in a separate order. [Caption Redacted], 2011 WL 10945618, at *6 n.15 (FISC Oct. 3, 2011) (emphasis added).
3

against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252.
In a FOIA case, the burden is on the agency to sustain its action and the district court must decide de novo whether an agency properly withheld information under a claimed exemption. 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). “The underlying facts are viewed in the light most favorable to the [FOIA] requester,” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983), and the exemptions are narrowly construed, FBI v. Abramson, 456 U.S. 615, 630 (1982). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt” from FOIA’s requirements. Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks and citation omitted).
A court may award summary judgment solely on the basis of information provided by the department or agency in affidavits describing “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project, 656 F.2d at 738; see also Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973). Affidavits submitted by
4

the agency to demonstrate the adequacy of its response are presumed to be in good faith, Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), “which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents,” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
III. ANALYSIS A. Collateral Estoppel DOJ contends that EFF should be collaterally estopped from seeking the release of the Section 1809 Opinion because EFF already litigated, and lost, prior FOIA requests for (1) docket information regarding the Section 1809 Opinion, see Electronic Frontier Foundation v. DOJ, 57 F. Supp. 3d at 61, and (2) the identity of telecommunications service providers who participated in NSA’s call records collection program, see Electronic Frontier Foundation v. DOJ, Case No. 4:11-cv-5221-YGR, 2014 WL 3945646, at *5-7 (N.D. Cal. Aug. 11, 2014). Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of fact or law that was actually litigated and necessarily decided is conclusive in a subsequent action between the same parties or their privies. Allen v. McCurry, 449 U.S. 90, 94 (1980); Yamaha Corp. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1993); Johnson v. Duncan, 746 F. Supp. 2d 163, 168 (D.D.C. 2010). In this case, EFF seeks the release of the Section 1809 Opinion itself. Because
5

the issue of DOJ’s withholding the Section 1809 Opinion has not been actually litigated and necessarily decided, collateral estoppel does not apply.5
B. Exemption 1 Under Exemption 1, FOIA does not require the production of records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). DOJ relies upon Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), which governs the classification and protection of national security information, to withhold the Section 1809 Opinion. Information can be properly classified under E.O. 13526 if four requirements are met: (1) an original classification authority has classified the information; (2) the United States Government owns, produces, or controls the information; (3) the information pertains to one or more of eight protected categories listed in Section 1.4 of the Executive Order, which include intelligence methods;6 and (4) the original
5 EFF has expressly agreed in this litigation not to seek docket information, the date of the Section 1809 Opinion, or the names or descriptions of surveillance targets. See MSJ at 6; EFF Reply at 2; Sherman Decl. [Dkt. 15-4] ¶ 9 n.1. 6 Section 1.4 of Executive Order 13526 describes the classification categories as follows:
Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;
6

classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. E.O. 13526 § 1.1(a). David Sherman, Associate Director for Policy and Records at the National Security Agency, submitted declarations in support of DOJ’s withholding of the Section 1809 Opinion. See Sherman Decl. [Dkt. 15-4]; Sherman Supp. Decl. [Dkt. 18-1]. Through these declarations, DOJ made an affirmative showing that (1) the Section 1809 Opinion was classified by an original classification authority, (2) the Opinion is owned, produced, or controlled by the U.S. Government, (3) the information pertains to three of the protected categories listed in Executive Order 13526––intelligence methods, foreign activities, and systems related to national security; and (4) disclosure could reasonably be expected to result in damage to national security. See Sherman Decl. ¶¶ 2, 15, 46-47, 52. Mr. Sherman explained that DOJ withheld the Section 1809
(d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or (h) the development, production, or use of weapons of mass destruction. E.O. 13526 § 1.4.
7

Opinion in full under FOIA Exemption 1 “because the release of any portion of that document
would tend to reveal information that is currently and properly classified at the Top Secret level,
specifically, an intelligence method.” Sherman Supp. Decl. ¶ 8. With regard to the fact that
disclosure could be expected to result in damage to national security, Mr. Sherman indicated
that:
47. Specifically, the release of the redacted information would disclose sensitive operational details associated with NSA’s “Upstream” collection capability. While certain information regarding NSA’s “Upstream” collection capability has been declassified and publicly disclosed, certain other information regarding the capability remains currently and properly classified. The redacted information would reveal specific details regarding the application and implementation of the “Upstream” collection capability that have not been publicly disclosed. Revealing the specific means and methodology by which certain types of SIGINT collections are accomplished could allow adversaries to develop countermeasures to frustrate NSA’s collection of information crucial to national security. Disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national security. I have reviewed this information and determined that it is currently and properly classified as Top Secret and falls within Sections 1.4(c), 1.4(d), and 1.4(g) of E.O. 13526.
. . .
52. With respect to the FISC opinion withheld in full, it is my judgment that any information in the [Section 1809 Opinion] is classified in the context of this case because it can reasonably be expected to reveal classified national security information concerning particular intelligence methods, given the nature of the document and the information that has already been released. . . . In these circumstances, the disclosure of even seemingly mundane portions of this FISC opinion would reveal particular instances in which the “Upstream” collection program was used and could reasonably be expected to encourage sophisticated adversaries to adopt countermeasures that may deprive the United States of critical intelligence.
Sherman Decl. ¶¶ 47, 52.
8

Through the Sherman Declarations,7 DOJ has sustained its burden of showing that
the Section 1809 Opinion is classified and that it properly withheld the document under FOIA Exemption 1.8 See Larson, 565 F.3d at 865 (“If 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
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.”).
EFF argues that while the Section 1809 Opinion was classified, it has been
officially disclosed and thus it should be released. See Fitzgibbon v. CIA, 911 F.2d 755, 765
(D.C. Cir. 1990) (official disclosure of classified information overcomes an otherwise valid
exemption claim). EFF insists that DOJ cannot continue to withhold the Section 1809 Opinion
in full because “it has already officially acknowledged and described the content of the
Opinion.” See Opp’n [Dkt. 16] at 8. The alleged official acknowledgement is the 2011 FISC
opinion’s statement of the Section 1809 Opinion’s holding, i.e., that “Section 1809(a)(2)
precluded the Court from approving the government's proposed use of, among other things,
7 The Court also reviewed the Classified Sherman Declaration and Classified Supplemental Sherman Declaration. See Notice [Dkt. 15-6] (DOJ lodged ex parte submission of Classified Sherman Declaration with Classified Information Security Officer); Notice [Dkt. 18-1] (DOJ lodged ex parte submission of Classified Supplemental Sherman Declaration with Classified Information Security Officer). 8 FOIA Exemption 3, 5 U.S.C. § 552(b)(3) protects from disclosure information that is exempted by another statute. Exemption 3 applies here as well. See Sherman Decl. ¶ 48 (the Section 1809 Opinion includes technical information about how NSA accomplishes its SIGINT mission, and thus it is protected from disclosure under Exemption 3 and under the National Security Act, 50 U.S.C. §§ 3605, 3024(i)(1), exempting from disclosure NSA functions, activities, intelligence sources, and methods); Sherman Supp. Decl. ¶ 13 (the Section 1809 Opinion is also protected from release under 18 U.S.C. § 798, which exempts communications intelligence activities and information obtained through communications intelligence).
9

certain data acquired by NSA without statutory authority through its ‘Upstream collection.’” [Caption Redacted], 2011 WL 10945618, at *6 n.15 (FISC Oct. 3, 2011).
Classified information may be disclosed over Government objection if the information has been “officially acknowledged,” that is, if (1) the same (2) specific information (3) already has been “made public through an official and documented disclosure.” Fitzgibbon, 911 F.2d at 765 (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)). “These criteria are important because they acknowledge the fact that in the arena of intelligence and foreign relations there can be a critical difference between official and unofficial disclosures.” Id. The D.C. Circuit has emphasized that “‘[p]rior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. This insistence on exactitude recognizes the Government’s vital interest in information relating to national security and foreign affairs.’” Am. Civil Liberties Union v. DoD, 628 F.3d 612, 621 (2011) (quoting Wolf, 473 F.3d at 378). Because the specific content of the Section 1809 Opinion has not been officially and publicly disclosed, the Opinion may be properly withheld under Exemption 1.
C. Segregability Even if an agency properly withholds responsive records under a FOIA exemption, it nevertheless must disclose any non-exempt information that is “reasonably segregable.” 5 U.S.C. § 552(b). “It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead, 566 F.2d at 260; see also Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999). A district court need not “order an agency to commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.” Mead, 566 F.2d at
10

261 n. 55. An agency cannot rely on mere conclusory statements that non-exempt material in a document is not reasonably segregable, but instead it must provide a reasonably detailed justification, except where “such a detailed justification . . . would itself compromise the secret nature of potentially exempt information.” Id. at 261. Nonetheless, “[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). A district court has “an affirmative obligation to consider segregability sua sponte.” Trans-Pacific Policing Agreement, 177 F.3d at 193.
EFF asserts that the legal analysis in the Section 1809 Opinion should be released because doing so would not implicate any legitimately withheld information. EFF surmises that the Section 1809 Opinion contains the following information that is not classified: FISC’s legal analysis of Section 1809(a)(2)’s preclusive effect, the statutory authority governing NSA surveillance, and NSA’s violation of that authority. See Opp’n at 9; see also id. at 10 (assuming that the Opinion contains “an analysis of the NSA’s statutory authority and that authority’s interaction with 50 U.S.C. § 1809”). EFF further hypothesizes that the Section 1809 Opinion contains information that was not properly classified.
EFF has not offered any support for these claims. The Court presumes that the Sherman affidavits were filed in good faith, see Ground Saucer Watch, 692 F.2d at 771, and this presumption is not rebutted by purely speculative claims, see SafeCard, 926 F.2d at 1200.
Further, EFF’s argument is substantially undermined by the reality that legal analysis is meaningless without facts. Legal analysis necessarily includes facts, and in this case those facts are classified. As Mr. Sherman indicated, the withheld information would reveal specific details regarding the application and implementation of the “Upstream” collection
11

capability and would reveal the specific means and methodology by which certain types of SIGINT collections are accomplished. Sherman Decl. ¶¶ 47, 52. Mr. Sherman stressed that “[i]n these circumstances, the disclosure of even seemingly mundane portions of this FISC opinion would reveal particular instances in which the ‘Upstream’ collection program was used and could reasonably be expected to encourage sophisticated adversaries to adopt countermeasures that may deprive the United States of critical intelligence.” Id. ¶ 52. See Larson, 565 F.3d at 864 (“Minor details of intelligence information may reveal more information than their apparent insignificance suggests because much like a piece of jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance itself.”) (internal quotations and citations omitted).
Relying on the Sherman Declarations, the Court finds that disclosure of any part of the Section 1809 Opinion could reasonably be expected to cause grave damage to national security. The document has been properly withheld in its entirety under Exemption 1.
IV. CONCLUSION For the reasons set forth above, the motion for summary judgment filed by the Department of Justice [Dkt. 15] will be granted, and the cross motion for partial summary judgment filed by the Electronic Frontier Foundation [Dkt. 17] will be denied. Judgment will be entered in favor of the Department of Justice. A memorializing Order accompanies this Opinion.

Date: October 30, 2015

/s/ ROSEMARY M. COLLYER United States District Judge

12

 
 Case: 1:14-cv-760 As of: 11/12/2018 10:00 AM EST 1 of 5
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:14−cv−00760−RMC

ELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT Date Filed: 05/01/2014

OF JUSTICE

Date Terminated: 10/30/2015

Assigned to: Judge Rosemary M. Collyer

Jury Demand: None

Demand: $0

Nature of Suit: 895 Freedom of

Case in other court: USCA, 15−05346

Information Act

Cause: 05:552 Freedom of Information Act

Jurisdiction: U.S. Government Defendant

Plaintiff

ELECTRONIC FRONTIER FOUNDATION

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

V. Defendant DEPARTMENT OF JUSTICE

represented by Jacqueline E. Coleman Snead U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 7332 Washington, DC 20044 (202) 514−3418 Fax: (202) 616−8470 Email: jacqueline.snead@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 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/01/2014
05/01/2014

# Docket Text
1 COMPLAINT for Injuncitve Relief against All Defendants DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090−3702791) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General, # 3 Summons Dept. of Justice, # 4 Summons US Attorneys Office)(Sobel, David) (Entered: 05/01/2014)
2 NOTICE OF RELATED CASE by ELECTRONIC FRONTIER FOUNDATION. Case related to Case No. 12−cv−1441. (Sobel, David) (Entered: 05/01/2014)

Case: 1:14-cv-760 As of: 11/12/2018 10:00 AM EST 2 of 5

05/01/2014 05/01/2014 05/01/2014 06/02/2014 06/02/2014 06/04/2014 08/01/2014
08/08/2014 08/12/2014 08/14/2014 09/03/2014
09/05/2014
09/10/2014 11/05/2014

3 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 05/01/2014)
Case Assigned to Judge Amy Berman Jackson. (sth, ) (Entered: 05/01/2014)
4 SUMMONS (3) Issued Electronically as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ) (Entered: 05/01/2014)
5 ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Coleman Snead, Jacqueline) (Entered: 06/02/2014)
6 RESPONSE re 2 Notice of Related Case and Objection to Designation filed by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 06/02/2014)
7 Case randomly reassigned to Judge Rosemary M. Collyer, as case is not related to 12cv1441. Judge Amy Berman Jackson no longer assigned to the case. (gt, ) (Entered: 06/04/2014)
8 MOTION for Preliminary Injunction by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Memorandum in Support of Motion for Preliminary Injunction, # 2 Declaration of David Sobel, # 3 Exhibit #1 to Decl. of David Sobel, # 4 Exhibit #2 to Decl. of David Sobel, # 5 Exhibit #3 to Decl. of David Sobel, # 6 Exhibit #4 to Decl. of David Sobel, # 7 Exhibit #5 to Decl. of David Sobel, # 8 Exhibit #6 to Decl. of David Sobel, # 9 Exhibit #7 to Decl. of David Sobel, # 10 Text of Proposed Order)(Sobel, David) (Entered: 08/01/2014)
9 Memorandum in opposition to re 8 MOTION for Preliminary Injunction filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Coleman Snead, Jacqueline) (Entered: 08/08/2014)
Set/Reset Deadlines/Hearings: Preliminary Injunction Hearing set for 9/3/2014 at 2:00 PM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 08/12/2014)
10 REPLY to opposition to motion re 8 MOTION for Preliminary Injunction filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A)(Sobel, David) (Entered: 08/14/2014)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Preliminary Injunction Hearing held on 9/3/2014. Motion 8 for Preliminary Injunction, heard and taken under advisement. Status Conference set for 11/5/2014 at 12:15 PM in Courtroom 8 before Judge Rosemary M. Collyer. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 09/04/2014)
MINUTE ORDER. At the hearing on September 3, 2014, Plaintiff withdrew its request for a preliminary injunction and requested a firm schedule for agency determinations on its FOIA requests. Plaintiff's motion for preliminary injunction 8 is thus denied as moot. The Court GRANTS Plaintiff's motion to set a schedule. DOJ shall issue a partial determination on the 8/23/13 and 2/24/14 FOIA Requests by September 5, 2014, and shall forthwith produce records, if production is applicable. DOJ shall make a final determination on the 8/23/13 and 2/24/14 FOIA Requests by November 3, 2014, and shall produce records, if production is applicable. DOJ shall issue rolling responses on the 10/31/13 and 3/14/14 FOIA Requests on December 8, 2014; January 26, 2015; and March 2, 2015, whereby it issues a determination and produces records, if production is applicable and so long as doing so would not release an incomplete document. Each of DOJ's rolling responses shall be as to one−third of the requested pages. A status conference is scheduled for November 5, 2014 at 12:15 p.m. in Courtroom 8. Signed by Judge Rosemary M. Collyer on 9/5/2014. (KD) (Entered: 09/05/2014)
11 NOTICE of Change of Address by David L. Sobel (Sobel, David) (Entered: 09/10/2014)
MINUTE ORDER setting a status conference on February 9, 2015 at 10:45 a.m. Signed by Judge Rosemary M. Collyer on 11/5/2014. (KD) (Entered: 11/05/2014)

Case: 1:14-cv-760 As of: 11/12/2018 10:00 AM EST 3 of 5

11/05/2014 12/05/2014 12/08/2014
12/08/2014 02/04/2015 02/12/2015 02/12/2015
02/12/2015 03/04/2015 03/10/2015
03/12/2015 03/16/2015
03/16/2015 03/16/2015
05/01/2015
06/01/2015

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 11/5/2014. (Court Reporter Crystal Pilgrim.) (cdw) (Entered: 11/06/2014)
12 Consent MOTION for Extension of Time to Provide Interim, Partial FOIA Response by DEPARTMENT OF JUSTICE (Coleman Snead, Jacqueline) (Entered: 12/05/2014)
MINUTE ORDER granting 12 Defendant's consent Motion for Extension of Time. By Decmber 15, 2014, the Government shall provide its next interim response to FOIA Requests dated 10/31/13 and 3/14/14. Signed by Judge Rosemary M. Collyer on 12/8/2014. (KD) (Entered: 12/08/2014)
Set/Reset Deadlines/Hearings: Interim response to FOIA Requests dated 10/31/13 and 3/14/14 due by 12/15/2014. (cdw) (Entered: 12/09/2014)
Set/Reset Deadlines/Hearings: Status Conference reset for 2/12/2015 at 11:00 AM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 02/04/2015)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 2/12/2015. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 02/12/2015)
MINUTE ORDER setting status conference on March 16, 2015 at 10:15 a.m. in Courtroom 8. The parties shall file a joint proposed dispositive motion briefing schedule no later than March 12, 2015. Signed by Judge Rosemary M. Collyer on 2/12/2015. (KD) (Entered: 02/12/2015)
Set/Reset Deadlines/Hearings: Joint proposed dispositive motion briefing schedule due by 3/12/2015. Status Conference set for 3/16/2015 at 10:15 AM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 02/13/2015)
13 MOTION for Extension of Time to Complete FOIA Processing by DEPARTMENT OF JUSTICE (Coleman Snead, Jacqueline) (Entered: 03/04/2015)
MINUTE ORDER granting 13 Defendant's Motion for Extension of Time nunc pro tunc to March 2, 2015. Defendant shall complete the processing of Plaintiff's March 14, 2014 FOIA request by March 6, 2015. Signed by Judge Rosemary M. Collyer on 3/10/2015. (KD) (Entered: 03/10/2015)
14 NOTICE − Joint Proposed Dispositive Motion Briefing Schedule by ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 03/12/2015)
MINUTE ORDER setting briefing schedule. Defendant's motion for summary judgment is due May 1, 2015; Plaintiff's opposition/cross motion is due June 1, 2015; Defendant's reply/opposition is due July 1, 2015; Plaintiff's reply is due July 15, 2015. Signed by Judge Rosemary M. Collyer on 3/16/2015. (KD) (Entered: 03/16/2015)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 3/16/2015. (Court Reporter Crystal Pilgrim) (cdw) (Entered: 03/16/2015)
Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 5/1/2015. Response to Motion for Summary Judgment due by 6/1/2015. Reply to Motion for Summary Judgment due by 7/1/2015. Plaintiff's Cross Motion due by 6/1/2015. Response to Cross Motion due by 7/1/2015. Reply to Cross Motion due by 7/15/2015. (cdw) (Entered: 03/16/2015)
15 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statment of Undisputed Facts, # 3 Declaration Susan Kim, # 4 Declaration David Sherman, # 5 Declaration David Hardy, # 6 Notice of Classified Filing)(Coleman Snead, Jacqueline) Modified on 5/4/2015 (rdj). (Entered: 05/01/2015)
16 Memorandum in opposition to re 15 MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 06/01/2015)

Case: 1:14-cv-760 As of: 11/12/2018 10:00 AM EST 4 of 5

06/01/2015 07/01/2015 07/01/2015 07/15/2015 08/21/2015 10/30/2015 10/30/2015 12/24/2015
12/28/2015 12/30/2015 01/12/2016
01/25/2016
01/27/2016 01/28/2016 02/05/2016 02/16/2016

17 Cross MOTION for Partial Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 06/01/2015)
18 REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Notice of Classified Filing)(Coleman Snead, Jacqueline) (Entered: 07/01/2015)
19 Memorandum in opposition to re 17 Cross MOTION for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Counterstatement of Facts, # 2 Notice of Classified Filing)(Coleman Snead, Jacqueline) (Entered: 07/01/2015)
20 REPLY to opposition to motion re 17 Cross MOTION for Partial Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Sobel, David) (Entered: 07/15/2015)
21 NOTICE of Appearance by Rodney Patton on behalf of DEPARTMENT OF JUSTICE (Patton, Rodney) (Entered: 08/21/2015)
22 MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 10/30/2015. (KD) (Entered: 10/30/2015)
23 ORDER granting 15 Defendant's Motion for Summary Judgment; denying 17 Plaintiff's Motion for Partial Summary Judgment; Judgment is entered in favor of Defendant. This case is closed. Signed by Judge Rosemary M. Collyer on 10/30/2015. (KD) (Entered: 10/30/2015)
24 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 23 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, 22 Memorandum & Opinion by ELECTRONIC FRONTIER FOUNDATION. Filing fee $ 505, receipt number 0090−4360913. Fee Status: Fee Paid. Parties have been notified. (Sobel, David) (Entered: 12/24/2015)
25 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 24 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 12/28/2015)
USCA Case Number 15−5346 for 24 Notice of Appeal to DC Circuit Court, filed by ELECTRONIC FRONTIER FOUNDATION. (zrdj) (Entered: 12/30/2015)
26 WITHDRAWN PURSUANT TO NOTICE FILED 2/16/2016.....MOTION for Reconsideration re 23 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, 22 Memorandum & Opinion by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Declaration of David L. Sobel, # 2 Exhibit A to Sobel Decl., # 3 Exhibit B to Sobel Decl., # 4 Exhibit C to Sobel Decl., # 5 Exhibit D to Sobel Decl.)(Sobel, David) Modified on 2/16/2016 (zrdj). (Entered: 01/12/2016)
27 Unopposed MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Reconsideration re 23 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, 22 Memorandum & Opinion by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 01/25/2016)
MINUTE ORDER granting 27 Motion for Extension of Time re 26 MOTION for Reconsideration. Response due by 2/5/2016. Reply due by 2/22/2016. Signed by Judge Rosemary M. Collyer on 1/27/2016. (KD) (Entered: 01/27/2016)
Set/Reset Deadlines: Response due by 2/5/2016. Reply due by 2/22/2016. (tb) (Entered: 01/28/2016)
28 Memorandum in opposition to re 26 MOTION for Reconsideration re 23 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, 22 Memorandum & Opinion filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 02/05/2016)
29 NOTICE OF WITHDRAWAL OF MOTION by ELECTRONIC FRONTIER FOUNDATION re 26 MOTION for Reconsideration re 23 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, 22

Case: 1:14-cv-760 As of: 11/12/2018 10:00 AM EST 5 of 5

04/27/2016

Memorandum & Opinion (Sobel, David) (Entered: 02/16/2016)
30 ORDER of USCA (certified copy) ORDERED that the motion be granted, and this case is hereby dismissed as to 24 Notice of Appeal to DC Circuit Court, filed by ELECTRONIC FRONTIER FOUNDATION. USCA Case Number 15−5346. (zrdj) (Entered: 04/28/2016)