0 8 CV 3 5 8 4 Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant.

COMPLAINT FOR INJUNCTIVE RELIEF
Civil Action No.

COMPLAINT FOR INJUNCTIVE RELIEF I. This is an action for injunctive and other appropriate relief under the Freedom of Information Act ("ForA"), 5 U.S.C. § 552. Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (collectively "ACLU") seek the immediate processing and release of records plaintiffs requested through the FOIA from defendant Federal Bureau ofInvestigation ("FBI"). 2. Plaintiffs submitted a FOIA request ("Request") to the FBI on November 29, 2007, after the Department of Defense ("DoD") released records to the ACLU in response to a separate FOIA lawsuit that suggested the FBI may be issuing National Security Letters ("NSLs") for the military in DoD investigations. Plaintiffs' Request sought records concerning the FBI's issuance ofNSLs in non-FBI investigations or at the behest of other agencies such as the DoD. The Request also sought records concerning the FBI's implementation and interpretation of its power to impose non-

Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 2 of 15
disclosure obligations on NSL recipients since Congress amended the NSL statutes in 2006.
Jurisdiction and Venue 3. This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) and 5 U.S.c. § 552(a)(4)(A)(vii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue is proper in this district under 5 U.S.c. § 552(a)(4)(B).
Parties 4. Plaintiff American Civil Liberties Union is a nationwide, non-profit, nonpartisan organization with over 500,000 members dedicated to the constitutional principles ofliberty and equality. 5. Plaintiff American Civil Liberties Union Foundation is a separate 501(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It has filed multiple FOIA requests pertaining to the government's use ofNSLs and has also challenged the legality of the NSL power in multiple lawsuits. 6. Defendant FBI is a Department ofthe Executive Branch of the United States Government. The FBI is an "agency" within the meaning of 5 U.S.c. § 552(t)(I).
Background National Security Letters 7. NSLs are written demands for records issued by government agencies to seek the production of a broad array of sensitive information about individuals within the United States. There are five statutory provisions that grant power to issue NSLs. The
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FBI can issue NSLs to obtain subscriber information, toll billing records or electronic communication transactional records from electronic communication service providers pursuant to 18 u.s.c. § 2709. The FBI can also issue NSLs that demand credit account information pursuant to IS U.S.C. § 1681u. Agencies authorized to conduct intelligence or terrorism investigations can request financial and credit records pursuant to 12 U.S.C. § 3414 and 15 U.S.c. § 1681v. Finally, 50 U.S.C. § 436 allows government agencies to issue demands for financial, credit, and travel information about employees suspected of espionage or terrorism.
8. NSLs are issued without probable cause and without any prior judicial approval. The USA Patriot Act, Pub. L. 107-56, Title V, § 505, passed in October 2001, vastly expanded the scope ofthe NSL authority, enabling the government to use NSLs to obtain personal information about individuals who are not suspected of any wrongdoing. Additionally, until 2006, the NSL statutes' non-disclosure provisions categorically and permanently prohibited NSL recipients from disclosing that the government had sought or obtained information from them.
9. In 2006, Congress amended the NSL nondisclosure provisions. The new law allows agencies unilaterally to issue gag orders on a case-by-case basis and strictly confmes the ability ofNSL recipients to challenge such orders in court. The reviewing court may modify or set aside gag orders only if it finds that there is "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person." 18 U.S.C. § 3511(b)(2). Moreover, if a designated senior government official "certifies that disclosure may
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Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 4 of 15
endanger the national security of the United States or interfere with diplomatic relations," the certification must be "treated as conclusive unless the court finds that the certification was made in bad faith." The new law also criminalizes certain violations of gag orders.
Public Concern About the NSL Authority 10. In March 2007, the Justice Department's Office ofthe Inspector General ("OIG") issued its first report about the FBI's use ofNSLs between calendar years 2003 and 2005. The OIG found that the FBI had substantially underreported to Congress the number ofNSLs it had issued; that in some cases the FBI issued NSLs even where no underlying investigation had been approved; that some NSL recipients had provided the FBI with information to which the agency was not entitled, including voicemails, emails, and images; and that the FBI issued more than 700 so-called "exigent letters," which were authorized neither by the NSL statutes nor by any other law. 11. The OIG's report generated significant media attention. See, e.g., Bush Addresses Misuse ofFBI Subpoenas, N.Y. Times, Mar. 11,2007; Lara Jakes Jordan, Gonzales, Mueller Admit FBI Broke Law, Wash. Post, Mar. 10,2007; Richard Schmitt, FBI Abuses May Lead to Patriot Act Limits, L.A. Times, Mar. 10,2007; R. Jeffrey Smith, Report Details Missteps in Data Collection, Wash. Post, Mar. 10, 2007; David Stout, FBI Head Admits Mistakes in Use ofSecurity Act, N.Y. Times, Mar. 10,2007; Dan Eggen and John Solomon, FBI Audit Prompts Calls for Reform, Wash. Post, Mar. 10,2007; Kelli Arena and Elaine Quijano, Audit: FBI's Patriot Act Snooping Broke Rules, CNN.com, Mar. 9,2007; Barton Gellman and John Solomon, Frequent Errors in FBI's Secret Records Requests, Wash. Post, Mar. 9, 2007; Glenn Greenwald, Editorial, The FBI's Lawbreaking is Tied Directly to President Bush, Salon.com, Mar. 9, 2007; Tim
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Grieve, Inspector General: FBI is Misusing "National Security Letters," Salon.com, Mar. 9,2007.
12. Major editorial pages called on both Congress and the FBI to put an end to abusive NSL practices and to evaluate whether the existing NSL statutes should be amended to prevent further abuse. See, e.g., Editorial, Abuse ofAuthority, Wash. Post, Mar. 11,2007; Editorial, The Failed Attorney General, N.Y. Times, Mar. 11,2007; see also, John Doe, Op-Ed., My National Security Letter Gag Order, Wash. Post, Mar. 23, 2007. Members of Congress also convened a number of hearings on the abuses and the scope of the NSL authority. See, e.g., Hearing ofthe Senate Select Committee on Intelligence: National Security Letters, II Oth Congo (2007); Hearing ofthe Senate Judiciary Subcommittee on the Constitution: Responding to the Inspector General's Findings ofImproper Use ofNational Security Letters by the FBI, I 10th Congo (2007); Hearing ofthe House Judiciary Committee: FBI Patriot Act Misuse, I l Oth Congo (2007); Hearing ofthe House Permanent Select Committee on Intelligence: The FBI's Use of National Security Letters and Section 2I 5 Requests for Business Records, II Oth Congo (2007).
13. In early 2007, the New York Times also reported that the DoD and the Central Intelligence Agency ("CIA") were issuing NSLs to demand sensitive credit and financial records about people in the United States without court approval, and in some instances, without any clear statutory authority to do so. Eric Lichtblau and Mark Mazzetti, Military Expands Intelligence Role in U.S., N.Y. Times, Jan. 13,2007; see also Cheney Defends Taking ofAmericans' Bank Records, Detroit Free Press, Jan. IS, 2007; David Savage, Cheney Defends Pentagon, L.A. Times, Jan. 15,2007; Officials: Pentagon
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I
Probed Finances, Wash. Post, Jan. 14,2007; Julian E. Barnes and Greg Miller, Pentagon

Conducting Probes in U.S., L.A. Times, Jan. 14,2007. These reports raised serious

questions about the source of the 000 and the CIA's authority to issue NSLs and

whether recipients were obligated to turn over records when presented with NSLs from

those agencies. See, e.g., Lichtblau and Mazzetti, supra.

14. In response to reports that the 000 and the CIA may have been abusing the

NSL authority, or issuing NSLs without any legal authority whatsoever, the ACLU filed

FOIA requests with the 000 and the CIA seeking the release of records concerning their

use ofNSLs. Subsequently, the ACLU filed a lawsuit to compel the production of these

records.

15. In October 2007 and March 2008, the 000 released documents to plaintiffs

which revealed that the FBI may be issuing NSLs at the behest of the 000, thereby

enabling the military to access information to which it is not otherwise entitled and to

evade the limits on its own authority to issue NSLs. These revelations generated

additional media interest reflecting continued concern over government abuse of the NSL

authority. See, e.g., Siobhan Gorman, Pentagon Uses FBI to Collect Data on People in

I

the u.s., Wall Street Journal, Apr. 2,2008; Leslie Schulman, DoD Using FBI to

I
I"

Circumvent Security Letter Limits: ACLU, Jurist, Apr. 2, 2008; Larry Neumeister, ACLU:
I
Military Skirting Law to Spy, Associated Press, Apr. 2, 2008; Editorial, National

Security: Going Wrong Way, Seattle Post-Intelligencer, Oct. 17,2007; Dahlia Lithwick,

The Dog Ate My Evidence: What Happens When the Government Can't Re-create the

Case against You?, Slate.com, Oct. 16, 2007; Pentagon, FBI Misusing Secret Info

Requests: ACLU, Agence France Presse, Oct. 15, 2007; New Docs Reveal DoD's Secret

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Domestic Surveillance, The North County Gazette, Oct. 15, 2007; Morning Edition: Pentagon Accused ofDomestic Spying, (NPR radio broadcast Oct. 15,2007); Karen Mathews, Pentagon Faultedfor 'Security Letters', Associated Press, Oct. 14, 2007; All Things Considered: National Security Letters Soughtfor Defense Department Workers, (NPR radio broadcast Oct. 14,2007); Editorial, Spies, Lies and FISA, N.Y. Times, Oct. 14,2007; Mark Mazzetti and Eric Lichtblau, Pentagon Review Faults Bank Record Demands, N.Y. Times, Oct. 13,2007.
16. Additionally, in September 2007, a federal district court judge found one of the NSL statute's non-disclosure provisions to be unconstitutional and struck down that entire NSL statute. Doe v. Gonzales, 500 F.Supp.2d 379 (S.D.N.Y. 2007). The court stayed its ruling pending the adjudication of the government's appeal. This decision reignited public concern about the government's authority to impose gag orders on NSL recipients. See, e.g., Adam Liptak, Judge Voids F.B.!. Tool Granted by Patriot Act, N.Y. Times, Sep. 7, 2007; Dan Eggen, Judge Invalidates Patriot Act Provisions, Wash. Post, Sep. 7, 2007; Kevin Bohn, Court Rules Part ofPatriot Act Unconstitutional, CNN, Sep. 7,2007; Larry Neumeister, Federal Judge Strikes Down Part ofPatriot Act, Blasts Congress, Associated Press, Sep. 7, 2007; Charlie Savage, Judge Rules Against FBI Data-Gathering Tool, Boston Globe, Sep. 7, 2007; Richard B. Schmitt, Judge Strikes Down Part ofPatriot Act, L.A. Times, Sep. 7,2007; John Nichols, The Patriot Act -- and the Senate's -- Constitution Problem, The Nation, Sep. 6, 2007; Ryan Singel, Court Strikes Down Key Patriot Act Power Again, Wired, Sep. 6, 2007.
17. In March 2008, the OIG issued a second report about FBI NSL use. This report covered calendar year 2006 and evaluated the reforms implemented by the
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Department of Justice and the FBI after the release of the 2007 OIG Report. The report found, among other things, that the FBI could not locate supporting documentation for 15% ofNSLs and could not locate return information for more than 500 NSL requests; that the FBI diminished the seriousness of violations of internal controls and regulations by characterizing them as "administrative errors"; that even by the FBI's count there had been more than 600 potential violations that should have been reported to the Intelligence Oversight Board ("lOB"); and that the FBI improperly issued "blanket NSLs" to "cover information already acquired through exigent letters and other informal responses." With respect to the FBI's gag power, the audit revealed that the FBI imposed gag orders on 97% ofNSL recipients, that some NSLs that imposed gag orders did not contain sufficient explanation to justify imposition of the gag orders, and that the FBI improperly imposed gag orders in eight of eleven "blanket" NSLs that senior FBI officials issued to cover illegal requests made through "exigent" letters.
18. The March 2008 OIG report also generated significant media attention and reignited public concern about the government's use and abuse ofNSLs. See, e.g., Dan Eggen, FBI ChiefConfirms Misuse ofSubpoenas, Wash. Post, Mar. 6, 2008; Eric Lichtblau, F.B.I. Says Records Demands Are Curbed, N.Y. Times, Mar. 6, 2008; Evan Perez, FBI ChiefReveals More Privacy Lapses, Wall Street Journal, March 6, 2008; John Solomon and William Branigin, Lawmakers Vow Hearings on FBI Errors, Wash. Post, Mar. 9, 2008; John Solomon and Barton Gellman, Frequent Errors in FBI's Secret Records Requests, Wash. Post, Mar. 9, 2008; Tim Grieve, Inspector General: FBI is Misusing "National Security Letters, " Salon.com, March 9, 2007.
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Plaintiffs' FOIA Request and Agency Reponse 19. In light of documents released to the ACLU by the DoD, and the continuing public concern about the FBI's abuse of the NSL authority and gag power, plaintiffs filed a FOiA Request with defendant FBI on November 29, 2007 which sought records created after September 11, 2001 concerning (1) "[t]he FBI's use or issuance ofNSLs at the request of the DoD for use in DoD investigations"; (2) "[tjhe FBI's use or issuance of NSLs for use in joint FBI/DoD investigations"; and, (3) "[t]he FBI's use or issuance of NSLs in non-FBI investigations." The Request also sought records regarding "[tjhe FBI's use, implementation, and interpretation of its authority to impose non-disclosure obligations on NSL recipients since the NSL non-disclosure provisions were amended in March 2006." 20. Plaintiffs sought expedited processing of the Request on the grounds that the records were urgently needed by an organization "primarily engaged in disseminating information" in order to "inform the public about actual or alleged Federal Government activity" and because the records related to 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)(v); 28 C.F.R. § 16.5(d)(l)(ii); 28 C.F.R. § l6.5(d)(I)(iv). 21. Plaintiffs also sought a waiver of document search, review, and duplication fees on the grounds that disclosure ofthe requested records was in the public interest and because disclosure was "likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552 (a)(4)(A)(iii); 28 C.F.R. § 16.II(k)(I)(i)-(ii).
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Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 10 of 15
Additionally, plaintiffs sought waiver of document and duplication fees on the grounds that the ACLU qualifies as a "representative ofthe news media" and the requested documents were not for commercial use. 28 C.F.R. § 16.11(c)(I)-(2); 28 C.F.R. § 16.11(d)(l).
22. By letter to plaintiffs dated December 5, 2007, defendant FBI acknowledged receipt of the Request.
23. To date, defendant FBI has not disclosed any records in response to plaintiffs' Request even though more than twenty days have elapsed since it was received, 5 U.S.C. § (a)(6)(A)(i) & 5 U.S.C. § (a)(3)(A), nor has the FBI responded to the ACLU's request for expedited processing or fee waiver.
Plaintiffs' Entitlement to Expedited Processing 24. Plaintiffs are entitled to expedited processing of their Request. 25. Under the FOIA and defendant FBI's regulations, plaintiffs are entitled to expedited processing oftheir Request because there is a "compelling need" for the records at issue; specifically, the records are urgently needed by an organization "primarily engaged in disseminating information" in order to "inform the public concerning actual or alleged Federal Government activity." 5 U.S.C. § 552(a)(6)(E)(i)(I); 5 U.S.C. § 552(a)(6)(E)(v)(II); 28 C.F.R. § 16.5(d)(I)(ii). Plaintiffs are also entitled to expedited processing of their Request because it involves 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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Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 11 of 15
26. Plaintiffs' Request concerns actual or alleged federal government activity. 28 C.F.R. § 16.5(d)(I)(ii). Specifically, plaintiffs seek records regarding the FBI's use (and potential abuse) of its NSL authority to demand information for non-FBI investigations, thereby enabling other agencies like the DoD to access information to which they are not otherwise entitled. Plaintiffs also seek records about the FBI's implementation of its power to gag NSL recipients.
27. Plaintiffs' Request also implicates an urgent matter of public concern. The continuous and evolving coverage of this issue by both Congress and the media confirms that there is an urgent need to inform the public about how the FBI is using its NSL power, whether it is abusing that power by improperly issuing NSLs at the behest of other agencies, and whether it is improperly gagging NSL recipients.
28. The ACLU is "primarily engaged in disseminating information" to the public within the meaning of the statute and regulations. 5 U.S.C. § 552(a)(6)(E)(v)(1I); 28 C.F.R. § 16.5 (d)(l)(ii). Dissemination of information to the public is a critical and substantial component of the ACLU's mission and work. Specifically, the ACLU publishes educational and informational materials that are broadly circulated to the public including, but not limited to, newsletters, news briefings, and right-to-know documents. Such material is available to the public at no cost or for a nominal fee. The ACLU also disseminates information through its heavily visited website, www.aclu.org, and through its various affiliate offices located throughout the United States. The ACLU is also "primarily engaged in disseminating information" about NSLs, in particular. The ACLU has played a leading role in disseminating information about the use ofNSLs on its
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Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 12 of 15
website, in widely publicized reports, through other FOIA requests, and substantive lawsuits challenging the government's NSL authority.
29. As the numerous and persistent press reports discussed above demonstrate, there continues to be widespread and exceptional media interest concerning the FBI's use ofNSLs, as well as widespread concern that the FBI is abusing that power. Disclosure of records pertaining to the FBI's practice of issuing NSLs for non-FBI investigations, thereby enabling agencies like the DoD to circumvent the limits on their own authority, is vital to the public's understanding of the way in which the government as a whole is using NSLs to gather personal data about people in the United States. It is also vital to the public's understanding of the myriad ways the FBI is using (and potentially abusing) its NSL authority. The records will also shed light on whether the DoD is using the FBI to expand its own role in domestic surveillance.
30. Media coverage of the recent federal district court decision holding that the NSL statute's non-disclosure provisions were unconstitutional, as well as pervasive coverage of the GIG's March 2007 and 2008 reports, demonstrate that there remains widespread and exceptional media and public interest in how the FBI is using its NSL gag power. Disclosure of records pertaining to how the FBI has interpreted and implemented its power to gag NSL recipients since the NSL law was amended in 2006 is key to the public's understanding of the FBI's practice of imposing onerous secrecy obligations on NSL recipients, and will help the public to evaluate whether that power is being abused.
31. Thus, records concerning the FBI's use ofNSLs at the behest of other agencies, as well as records concerning the FBI's implementation of its gag power, are
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Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 13 of 15
urgently needed to inform the public about "actual or alleged federal government activity." 28 C.F.R. § l6.5(d)(1)(ii). The records plainly also relate to a matter of widespread media interest regarding "questions about government integrity, which affects public confidence," 28 C.F.R. § l6.5(d)(l)(iv), and are crucial to providing the public with a full picture ofthe government's use ofNSLs.
Plaintiffs' Entitlement to a Waiver or Limitation of Processing Fees 32. The ACLU is entitled to a waiver of document search, review, and duplication fees because disclosure is in the public interest and because disclosure is "likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest of the requester." 5 U.S.c. § 552(a)(4)(A)(iii); 28 C.F.R. § 16.11(k)(l)(i)-(ii). 33. Numerous news accounts reflect the considerable public interest in the records plaintiffs seek. Given the ongoing and widespread media attention to this issue, the records sought in the instant Request will significantly contribute to public understanding of the operations and activities of and between the FBI and other government agencies. In addition, disclosure is not in the ACLU's commercial interest. As described above, any information disclosed by the ACLU as a result of this Request will be available to the public at no cost. Thus, a fee waiver would fulfill Congress' legislative intent in amending FOIA. 34. The ACLU is also entitled to a waiver of document reproduction fees because the ACLU qualifies as a "representative of the news media" and the records are not sought for commercial use. 28 C.F.R. § l6.11(c)(I)-(2); 28 C.F.R. § l6.11(d)(I).
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Case 1:08-cv-03584-VM Document 1 Filed 04/15/08 Page 14 of 15

I

I

I

Causes of Action

35. Defendant's failure to make a reasonable effort to search for records

responsive to the plaintiffs' Request violates the FOIA, 5 U.S.C. § 552(a)(3)(C), and

I

defendant's corresponding regulations.

36. Defendant's failure to make promptly available the records sought by

plaintiffs' Request violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and defendant's

corresponding regulations.

37. Defendant's failure to timely respond to plaintiffs' Request violates the FOIA,

5 U.S.c. § 552(a)(6)(A), and defendant's corresponding regulations.

38. Defendant's failure to grant plaintiffs' Request for expedited processing

violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and defendant's corresponding regulations.

39. Defendant's failure to grant waiver of document search, review, and

duplication fees violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and defendant's

corresponding regulations.

Requested Relief

WHEREFORE, plaintiffs respectfully request that this Court:

I. Order defendant immediately to conduct a thorough search for all responsive

records;

2. Order defendant to process all responsive records expeditiously;

3. Order defendant promptly to disclose the requested records in their entirety, and

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r

f
make copies available to plaintiffs;

4. Enjoin defendant from charging plaintiffs fees for the processing oftheir Request;

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5. Award plaintiffs their costs and reasonable attorneys' fees incurred in this action;

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and

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

Respectfully submitted,

April 15, 2008

L. DANIELLE TULLY (LT-0509) MELISSA GOODMAN (MG-7844) JAMEEL JAFFER(JJ-4653) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Phone: 212-549-2500 Fax: 212-549-2583
ARTHUR N. EISENBERG (AE-2012) New York Civil Liberties Union Foundation 125 Broad Street New York, NY 10004

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 Case 1:08-cv-03584-VM Document 11 Filed 12/19/08 Page 1 of 3

COURTESY COPY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

---------------------------------------

X

AMERICAN CIVIL LIBERTIES UNION;

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION,

Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION,

08 Civ. 3584 (VM) ECFCASE
. '\DS SDNY

Defendant.
--------------------------------- X

~vJF'.r·r
'\LLYFILED

STIPULATION AND ORDER

/;(/y.c-r-

wHEREAs, on November 29, 2007, Plaintiff submitted to the Federal Bureau of . ... -=-.:..:::.J

Investigation ("FBI") a Freedom of Information Act ("FOIA") request seeking certain

records relating to the FBI's use, implementation, and interpretation of its authority to

impose non-disclosure obligations on NSL recipients since the law was amended in

March 2006, as well as records relating to the FBI's use or issuance of NSLs at the

request of the Department of Defense ("DoD") (1) for use in DoD investigations; (2) for

use in joint FBI/DoD investigations; and (3) for use in non-FBI investigations (the

''Request");

WHEREAS, on April 15,2008, the plaintiffs filed a complaint, which alleged that

the FBI had failed to timely process and produce documents in response to the Request

and sought to require the FBI to expedite processing of the Request and to grant a waiver

or limitation of processing fees;

WHEREAS, on August 25, 2008, the parties stipulated to a schedule for

processing the Request;

Case 1:08-cv-03584-VM Document 11 Filed 12/19/08 Page 2 of 3
WHEREAS, pursuant to the stipulation, the processing of plaintiffs' FOfA request was completed and documents were released to plaintiffs by the FBr by November 21,
2008;
WHEREAS the parties wish to resolve their disputes concerning the FOIA request without further litigation;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the parties, as follows:
I. The parties agree to settle and compromise this action on the terms set forth below.
2. This action is hereby dismissed with prejudice, without an award of costs or fees to either party.
3. The release of the records already provided shall be in full settlement of plaintiffs' claim in this lawsuit.
4. This Stipulation and Order shall have no effect or bearing on any other FOIA request made by the plaintiffs or any other FOIA litigation filed by plaintiffs.
5. The parties understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect.
II II II II

Case 1:08-cv-03584-VM Document 11 Filed 12/19/08 Page 3 of 3

Dated: New York, New York December 18, 2008

Dated: New York, New York December 18, 2008
SO ORDERED. Dated: New Yor~J!:}ew York
DecembefT' 2008

By:
Assistant United States Attorney 86 Chambers Street New York, New York 10007 TeL: (212) 637-2701 Fax: (212) 637-2686

By:

L. ANIELLE TUl Y (LT~0509)

MELISSA GOOD

(MG-7844)

JAMEEL JAFFER (JJ-4653)

American Civil Liberties Union Foundation

125 Broad Street, 18th Floor

New York, New York 10004

Tel.: (212) 549-2500

Fax: (212) 549-2629

ARTHUR N. EJSENBERO (AE-2012) New York Civil Libcr1ies Union Foundation 125 Broad Street, 19111 Floor New York, NY 10004

SO ORDERED. The Clerk of C4Mt is directed to withdraw

ay pendmg motions in this actioR and to dose this case.

S);O-!{O'-R~;(DE~ U~D".~- ~~

DIIt

U.S.OJ.

 
 Case: 1:08-cv-3584 As of: 06/26/2015 12:55 PM EDT 1 of 4
CLOSED,ECF,SIMILAR
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:08−cv−03584−VM

American Civil Liberties Union et al v. Federal Bureau of Investigation Assigned to: Judge Victor Marrero Similar Case: 1:04−cv−02614−VM Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 04/15/2008 Date Terminated: 09/17/2008 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union

represented by Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street New York, NY 10004 (212) 607−3300 Fax: (212) 607−3318 Email: arteisenberg@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−7814 Fax: (212) 549−2629 Email: jjaffer@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2588 Fax: (212) 549−2680 Email: dtully@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Goodman American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212)549−2622 Fax: (212)549−2629 Email: mgoodman@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Foundation

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY

Case: 1:08-cv-3584 As of: 06/26/2015 12:55 PM EDT 2 of 4
ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori Danielle Tully (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Federal Bureau of Investigation

represented by Serrin Andrew Turner U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2701 Fax: (212)−637−2686 Email: serrin.turner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/15/2008
04/15/2008 04/15/2008 04/15/2008 04/15/2008
05/02/2008 05/02/2008 05/02/2008 05/16/2008 07/01/2008

# Docket Text
1 COMPLAINT against Federal Bureau of Investigation. (Filing Fee $ 350.00, Receipt Number 647576)Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(mbe) (Entered: 04/18/2008)
SUMMONS ISSUED as to Federal Bureau of Investigation. (mbe) (Entered: 04/18/2008)
CASE REFERRED TO Judge Victor Marrero as possibly related to 1:04−cv−2614. (mbe) (Entered: 04/18/2008)
Case Designated ECF. (mbe) (Entered: 04/18/2008)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(mbe) (Entered: 04/18/2008)
CASE ACCEPTED AS SIMILAR. Create association to 1:04−cv−02614−VM. Notice of Assignment to follow. (mbe) (Entered: 05/07/2008)
3 NOTICE OF CASE ASSIGNMENT to Judge Victor Marrero. (mbe) (mbe). (Entered: 05/07/2008)
Magistrate Judge Kevin N. Fox is so designated. (mbe) (Entered: 05/07/2008)
4 ANSWER to Complaint. Document filed by Federal Bureau of Investigation.(Turner, Serrin) (Entered: 05/16/2008)
5 NOTICE OF INITIAL CONFERENCE Initial Conference set for 7/18/2008 at 10:15 AM in Courtroom 20B, 500 Pearl Street, New York, NY 10007 before Judge Victor Marrero. (Signed by Judge Victor Marrero on 7/1/08) (mme) (Entered: 07/01/2008)

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07/17/2008 08/25/2008 08/25/2008
09/17/2008

6 ENDORSED LETTER addressed to Judge Victor Marrero from Serrin Turner dated 7/16/08 re: Request for a 4 week adjournment of the scheduled 7/18/08 initial conference. ENDORSEMENT: Request GRANTED. The initial status conference herein is rescheduled to 8/29/08 at 4:30 p.m. SO ORDERED. (Initial Conference set for 8/29/2008 at 04:30 PM before Judge Victor Marrero.) (Signed by Judge Victor Marrero on 7/16/08) (db) (Entered: 07/17/2008)
7 STIPULATION AND ORDER: It is hereby stipulated and agreed that Defendant's will complete its processing of the Request by November 21, 2008. The parties may agree to extend any of the deadlines set forth in this Stipulation and Order without approval of the Court. This Stipulation and Order shall not affect the defendant's right to redact or withhold requested records pursuant to applicable FOIA exemptions. This Stipulation and Order shall not affect the plaintiff's right under FOIA to challenge the adequacy of any search, withholding, or redaction of requested records, or any refusal of a fee waiver or limitation, This Stipulation and Order shall have no effect or bearing on any request for expedited processing or fee waiver or fee limitation in connection with any other FOIA request made by the plaintiff's. Plaintiff's expressly waive any argument that entry of this Stipulation and Order, or any party's compliance with the terms of this Stipulation and Order, confers prevailing−party status upon plaintiff's under the FOIA's fee−shifting provisions, 5 U.S.C 552(a)(4)(E), or otherwise entitles plaintiff's to attorney's fees. The parties understood and agree that this stipulation and order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. (Signed by Judge Victor Marrero on 8/24/2008) (jfe) (Entered: 08/25/2008)
8 STIPULATION AND ORDER: It is hereby stipulated and agreed that Defendant's will complete its processing of the Request by November 21, 2008. The parties may agree to extend any of the deadlines set forth in this Stipulation and Order without approval of the Court. This Stipulation and Order shall not affect the defendant's right to redact or withhold requested records pursuant to applicable FOIA exemptions. This Stipulation and Order shall not affect the plaintiff's right under FOIA to challenge the adequacy of any search, withholding, or redaction of requested records, or any refusal of a fee waiver or limitation, This Stipulation and Order shall have no effect or bearing on any request for expedited processing or fee waiver or fee limitation in connection with any other FOIA request made by the plaintiff's. Plaintiff's expressly waive any argument that entry of this Stipulation and Order, or any party's compliance with the terms of this Stipulation and Order, confers prevailing−party status upon plaintiff's under the FOIA's fee−shifting provisions, 5 U.S.C 552(a)(4)(E), or otherwise entitles plaintiff's to attorney's fees. The parties understood and agree that this stipulation and order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. ENDORSED: Request GRANTED. The next status conference herein is rescheduled to 12/19/2008 at 9:30 a.m. So Ordered. (Signed by Judge Victor Marrero on 8/25/2008) (jfe) (Entered: 08/25/2008)
9 CONDITIONAL ORDER OF DISCONTINUANCE: It is hereby ordered that this action be conditionally discontinued without prejudice and without costs; provided, however, that in furtherance of the terms of the parties' Stipulation and Orderdated August 18, 2008, (the "Agreement"), within thirty (30) days of November 21, 2008, the parties may submit to the Court their own final Stipulation of Dismissal for the Court to So Order. Otherwise, within such time counsel for plaintiff may apply by letter for restoration of the action to the active calendar of this Court in the event by the deadline indicated the settlement is not consummated. Upon such notification, the defendant shall continue to be subject to the Court's jurisdiction, the Court shall promptly reinstate the action to its active docket and the parties shall be directed to appear before the Court, without the necessity of additional process, on a date within thirty days of the plaintiff's application for reinstatement, to schedule remaining pre−trial proceedings and/or dispositive motions, as appropriate. This Ordershall be deemed a final discontinuance of the action with prejudice in the event plaintiff has not requested restoration of the case to the active calendar within such period of time. The next status conference herein is scheduled

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12/18/2008
12/19/2008 12/19/2008

for December 19, 2008 at 9:30 a.m. in the event plaintiff notifies the Court that the parties' settlement was not effectuated in accordance with the parties' August 18, 2008 Agreement, and that such conference is necessary to resume pretrial proceedings herein. The Clerk of Court is directed to close this case. (Signed by Judge Victor Marrero on 9/16/2008) (jfe) (Entered: 09/17/2008)
10 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT −STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above−captioned action is voluntarily dismissed, with prejudice against the defendant(s) all defendants and without costs to either party pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, Federal Bureau of Investigation.(Turner, Serrin) Modified on 12/19/2008 (dt). (Entered: 12/18/2008)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Serrin Turner for noncompliance with Section (14.3) of the S.D.N.Y. Electronic Case Filing Rules &Instructions. E−MAIL the PDF for Document 10 Stipulation of Voluntary Dismissal, to: judgments@nysd.uscourts.gov. (dt) (Entered: 12/19/2008)
11 STIPULATION AND ORDER; The parties agree to settle and compromise this action on the terms set forth below. This action is hereby dismissed with prejudice, without an award of costs or fees to either party. The release of the records already provided shall be in full settlement of plaintiffs' claim in this lawsuit. This Stipulation and Order shall have no effect or bearing on any other FOIA request made by the plaintiffs or any other FOIA litigation filed by plaintiffs. The parties understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. SO ORDERED. The Clerk of the Court is directed to withdraw any pending motions in this action and to close this case. SO ORDERED. (Signed by Judge Victor Marrero on 12/19/2008) (tve) (Entered: 12/19/2008)