Case: 4:16-cv-02041-HSG As of: 04/09/2019 10:37 AM PDT 1 of 9
ADRMOP,CLOSED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:16−cv−02041−HSG

Electronic Frontier Foundation v. United States Department of Justice Assigned to: Judge Haywood S Gilliam, Jr Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 04/19/2016 Date Terminated: 04/05/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Electronic Frontier Foundation

represented by Mark Thomas Rumold Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415)436−9333 Fax: 415−436−9993 Email: mark@eff.org TERMINATED: 08/08/2018 LEAD ATTORNEY

Aaron David Mackey Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: amackey@eff.org ATTORNEY TO BE NOTICED

Andrew Crocker Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415) 436−9333 Fax: (415) 436−9993 Email: andrew@eff.org ATTORNEY TO BE NOTICED

Nathan Daniel Cardozo Facebook 1 Hacker Way Menlo Park, CA 94025 (415) 952−6283 Fax: 415−436−9993 Email: cardozo@gmail.com TERMINATED: 01/30/2019

V. Defendant United States Department of Justice

represented by Julia Alexandra Heiman United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washigton, DC 20530 949−350−8719 Email: julia.heiman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Rodney Patton U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 11022 Washington, DC 20005 United Sta 202−305−7919 Fax: 202−305−2685 Email: Rodney.Patton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/19/2016
04/19/2016 04/19/2016 04/19/2016 04/19/2016 04/19/2016
04/21/2016
04/21/2016 05/02/2016 05/02/2016 05/23/2016

# Docket Text
1 COMPLAINT for Injunctive Relief for Violation of the Freedom of Information Act, 5 U.S.C. Section 552 against United States Department of Justice, (Filing Fee: $400.00, receipt number 0971−10381690). Filed by Electronic Frontier Foundation. (Attachments: #(1) Civil Cover Sheet) (Rumold, Mark) (Filed on 4/19/2016) (Entered: 04/19/2016)
2 Proposed Summons. (Rumold, Mark) (Filed on 4/19/2016) (Entered: 04/19/2016)
3 Certificate of Interested Entities or Parties filed by Electronic Frontier Foundation (Rumold, Mark) (Filed on 4/19/2016) (Entered: 04/19/2016)
4 NOTICE of Appearance by Aaron David Mackey (Mackey, Aaron) (Filed on 4/19/2016) (Entered: 04/19/2016)
5 NOTICE of Appearance by Nathan Daniel Cardozo (Cardozo, Nathan) (Filed on 4/19/2016) (Entered: 04/19/2016)
6 Case assigned to Magistrate Judge Sallie Kim.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. by 5/3/2016. (cjlS, COURT STAFF) (Filed on 4/19/2016) (Entered: 04/19/2016)
7 Initial Case Management Scheduling Order with ADR Deadlines: Joint Case Management Statement due by 7/20/2016. Initial Case Management Conference set for 7/27/2016 at 1:30 PM in Courtroom A, 15th Floor, San Francisco. (Attachments: #(1) SK Civil Standing Order, #(2) Civil Standing Order for All Judges) (tnS) (Filed on 4/21/2016) (Entered: 04/21/2016)
8 Summons Issued as to Defendant United States Department of Justice. (tnS) (Filed on 4/21/2016) (Entered: 04/21/2016)
9 SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. United States Department of Justice served on 4/22/2016, answer due 5/23/2016. (Rumold, Mark) (Filed on 5/2/2016) (Entered: 05/02/2016)
10 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Electronic Frontier Foundation.. (Rumold, Mark) (Filed on 5/2/2016) (Entered: 05/02/2016)
11 NOTICE of Appearance by Julia Alexandra Berman (Berman, Julia) (Filed on 5/23/2016) (Entered: 05/23/2016)

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05/23/2016 05/25/2016
05/26/2016 05/26/2016

12 ANSWER to Complaint filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Berman, Julia) (Filed on 5/23/2016) (Entered: 05/23/2016)
13 CLERK'S NOTICE Re: Consent or Declination: Defendant shall file a consent or declination to proceed before a magistrate judge by 6/8/2016. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (mklS, COURT STAFF) (Filed on 5/25/2016) (Entered: 05/25/2016)
14 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by United States Department of Justice.. (Patton, Rodney) (Filed on 5/26/2016) (Entered: 05/26/2016)
15 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE−NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.

05/27/2016 06/02/2016

This is a text only docket entry; there is no document associated with this notice. (mklS, COURT STAFF) (Filed on 5/26/2016) (Entered: 05/26/2016)
16 ORDER, Case reassigned to Hon. Haywood S Gilliam, Jr. Magistrate Judge Sallie Kim no longer assigned to the case.. Signed by Executive Committee on 5/27/16. (ha, COURT STAFF) (Filed on 5/27/2016) (Entered: 05/27/2016)
17 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE FOR REASSIGNED CIVIL CASE. Notice is hereby given that a Case Management Conference has been set for August 2, 2016, before Judge Haywood S. Gilliam, Jr., at 2:00 p.m., in Courtroom 10, 19th Floor, 450 Golden Gate Avenue, San Francisco, CA. Case Management Statement due by July 26, 2016.

(This is a text only docket entry, there is no document associated with this notice.)

06/06/2016 06/06/2016
07/15/2016 07/15/2016 07/15/2016 07/15/2016
07/26/2016

(ndrS, COURT STAFF) (Filed on 6/2/2016) (Entered: 06/02/2016)
18 STIPULATION WITH PROPOSED ORDER filed by United States Department of Justice. (Patton, Rodney) (Filed on 6/6/2016) (Entered: 06/06/2016)
Electronic filing error. Document contains incorrect Case Number and Judge's Initials. Please re−file in its entirety. Re: 18 STIPULATION WITH PROPOSED ORDER filed by United States Department of Justice (dtmS, COURT STAFF) (Filed on 6/6/2016) (Entered: 06/06/2016)
19 ADR Clerk's Notice re: Non−Compliance with Court Order (ewh, COURT STAFF) (Filed on 7/15/2016) (Entered: 07/15/2016)
20 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Mackey, Aaron) (Filed on 7/15/2016) (Entered: 07/15/2016)
21 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Mackey, Aaron) (Filed on 7/15/2016) (Entered: 07/15/2016)
22 ADR Clerk's Notice Setting ADR Phone Conference on July 28, 2016 at 11:00 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 7/15/2016) (Entered: 07/15/2016)
23 Joint Case Management Conference Statement filed by United States Department of Justice. (Berman, Julia) (Filed on 7/26/2016) (Entered: 07/26/2016)

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07/28/2016 08/01/2016 08/02/2016 08/02/2016 09/20/2016 09/22/2016
09/22/2016 09/28/2016 09/29/2016 09/29/2016 10/13/2016
11/03/2016 11/07/2016

24 ADR Remark: ADR Phone Conference held on 7/28/2016 with Tamara Lange. (cmf, COURT STAFF) (Filed on 7/28/2016) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 07/28/2016)
25 STIPULATION WITH [PROPOSED] ORDER to Set Briefing Schedule and Vacate Case Management Conference filed by Electronic Frontier Foundation. (Mackey, Aaron) (Filed on 8/1/2016) (Entered: 08/01/2016)
26 ORDER by Judge Haywood S. Gilliam, Jr. Granting 25 Stipulation. (ndrS, COURT STAFF) (Filed on 8/2/2016) (Entered: 08/02/2016)
Set Deadlines/Hearing Pursuant to Docket No. 26 : Motions due by 9/22/2016; Responses / Cross Motions due by 10/13/2016; Replies due by 11/3/2016; Replies due by 11/17/2016; Motion Hearing set for 12/15/2016 02:00 PM before Hon. Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 8/2/2016) (Entered: 08/02/2016)
27 Defendant's Unopposed Administrative Motion To Modify Briefing Schedule to Provide for Cross−Motions For Partial Summary Judgment. Responses due by 9/26/2016. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 9/20/2016) Modified on 9/21/2016 (pdy, COURT STAFF). (Entered: 09/20/2016)
28 ORDER by Hon. Haywood S. Gilliam, Jr. GRANTING 27 Defendant's Unopposed Administrative Motion to Modify Briefing Schedule. In light of the fact that the cross−motions for partial summary judgment will only address the March 7, 2016, FOIA request, the parties are DIRECTED to meet and confer regarding the number of pages of briefing realistically needed to address this sole issue. The parties shall submit a joint stipulation proposing substantially shorter page limits for the briefs related to their cross−motions for partial summary judgment by September 28, 2016. (This is a text−only docket entry; there is no document associated with this entry.)(hsglc2S, COURT STAFF) (Filed on 9/22/2016) (Entered: 09/22/2016)
29 MOTION for Summary Judgment (Partial) filed by United States Department of Justice. Motion Hearing set for 12/15/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 10/13/2016. Replies due by 11/3/2016. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Berman, Julia) (Filed on 9/22/2016) (Entered: 09/22/2016)
30 STIPULATION WITH PROPOSED ORDER Regarding Page Limits on Briefs filed by United States Department of Justice. (Patton, Rodney) (Filed on 9/28/2016) (Entered: 09/28/2016)
Remark re 30 Stipulation: REMINDER to include Judge's initials following the case number on your documents. This is a text only entry, there is no document associated with this entry. (ecgS, COURT STAFF) (Filed on 9/29/2016) (Entered: 09/29/2016)
31 ORDER by Judge Haywood S. Gilliam, Jr. Granting 30 Stipulation Regarding Page Limits on Briefs. (ndrS, COURT STAFF) (Filed on 9/29/2016) (Entered: 09/29/2016)
32 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Partial Summary Judgment filed by Electronic Frontier Foundation. Motion Hearing set for 12/15/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 11/3/2016. Replies due by 11/17/2016. (Attachments: # 1 Declaration of Mark Rumold, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Proposed Order)(Rumold, Mark) (Filed on 10/13/2016) (Entered: 10/13/2016)
33 OPPOSITION/RESPONSE (re 32 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Partial Summary Judgment ) filed by United States Department of Justice. (Attachments: # 1 Exhibit 1 , # 2 Exhibit 2 , # 3 Proposed Order)(Patton, Rodney) (Filed on 11/3/2016) Modified on 11/4/2016 (ecgS, COURT STAFF). (Entered: 11/03/2016)
34 STATUS REPORT by United States Department of Justice. (Patton, Rodney) (Filed on 11/7/2016) (Entered: 11/07/2016)

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11/14/2016 11/14/2016 11/14/2016

35 STIPULATION WITH PROPOSED ORDER filed by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 11/14/2016) (Entered: 11/14/2016)
36 ORDER by Judge Haywood S. Gilliam, Jr. Granting 35 Stipulation. (ndrS, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/14/2016)
Electronic filing error. Re: 35 STIPULATION WITH PROPOSED ORDER

Judge Gilliam Jr.'s signature line is as follows: Hon. Haywood S. Gilliam, Jr. United States District Judge

Counsel need not re−file document, but should reference Judge Gilliam Jr.'s suffix in future filings.

11/23/2016 11/28/2016

This is a text only docket entry. There is no document associated with this entry. [err400] (ecgS, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/14/2016)
37 STIPULATION WITH PROPOSED ORDER to Extend Deadline for Reply re 32 Cross Motion for Summary Judgment filed by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 11/23/2016) Modified on 11/28/2016 (ecgS, COURT STAFF). (Entered: 11/23/2016)
Electronic filing error. Document not properly linked. [err102] Re: 37 STIPULATION WITH PROPOSED ORDER filed by Electronic Frontier Foundation.

11/28/2016 11/28/2016 12/01/2016 12/02/2016 12/02/2016 12/15/2016 01/30/2017 02/14/2017 03/01/2017

Corrected by Clerk's Office. No further action is necessary. (ecgS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
38 ORDER by Judge Haywood S. Gilliam, Jr. Granting 37 Stipulation to Extend Deadline for Reply re 32 Cross Motion for Summary Judgment. (ndrS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
Reset Deadline Pursuant to Docket No. 38 as to 32 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Partial Summary Judgment: Replies due by 12/1/2016. (ndrS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
39 STIPULATION WITH PROPOSED ORDER to Stay Briefing, Vacate Hearing for Cross−Motions for Summary Judgment filed by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 12/1/2016) Modified on 12/1/2016 (ecgS, COURT STAFF). (Entered: 12/01/2016)
40 ORDER by Judge Haywood S. Gilliam, Jr. Granting 39 Stipulation to Stay Briefing, Vacate Hearing for Cross−Motions for Summary Judgment. Joint Status Report due by 12/15/2016.. (ndrS, COURT STAFF) (Filed on 12/2/2016) (Entered: 12/02/2016)
Set Deadline Pursuant to Docket No. 40 : Joint Status Report due by 1/30/2017. (ndrS, COURT STAFF) (Filed on 12/2/2016) (Entered: 12/02/2016)
41 JOINT STATUS REPORT by United States Department of Justice. (Patton, Rodney) (Filed on 12/15/2016) Modified on 12/16/2016 (als, COURT STAFF). (Entered: 12/15/2016)
42 STATUS REPORT By Both Parties Filed by United States Department of Justice. (Patton, Rodney) (Filed on 1/30/2017) (Entered: 01/30/2017)
43 ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING the parties to file a joint status report of no more than five pages by April 17, 2017. (This is a text−only docket entry; there is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 2/14/2017) (Entered: 02/14/2017)
44 CLERKS NOTICE REGARDING CHANGE OF LOCATION FOR JUDGE GILLIAM:

Effective March 2, 2017, Judge Haywood S. Gilliam, Jr.'s courtroom and chambers will be located in the Ronald V. Dellums Federal Building and United States

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04/17/2017 05/02/2017
05/02/2017 05/25/2017
05/26/2017
05/30/2017 05/30/2017 06/21/2017 06/22/2017
06/22/2017 07/19/2017 07/20/2017

Courthouse, Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612.
On or after March 2, 2017, all filings for matters pending on Judge Gilliam's docket, all court appearances, and all deliveries of chambers copies of documents must be made at the Oakland Courthouse. The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.
Please note that all of Judge Gilliam's case files will be moved to the Oakland Courthouse; therefore, all case numbers assigned to him will be changed slightly to reflect the correct location. Previously, all case numbers started with 3 to indicate the San Francisco office (Example: 3:15−cv−1129−HSG). As of March 2, 2017 all of Judge Gilliam's case files will begin with 4 to indicate the Oakland office, but everything else will stay the same (Example: 4:15−cv−1129−HSG). When e−filing, using the short case number format will always avoid problems when searching for the correct case: 12−12345 (YY−NNNNN).
For information on the Oakland Courthouse please go to: http://cand.uscourts.gov/locations−oakland (mclS, COURT STAFF) (Filed on 3/1/2017) (Entered: 03/01/2017)
45 JOINT STATUS REPORT by United States Department of Justice. (Patton, Rodney) (Filed on 4/17/2017) Modified on 4/18/2017 (alsS, COURT STAFF). (Entered: 04/17/2017)
46 ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING the parties to file a joint status report of no more than five pages by June 16, 2017. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 5/2/2017) (Entered: 05/02/2017)
Set Deadline Pursuant to Docket No. 46 : Status Report due by 6/16/2017. (ndrS, COURT STAFF) (Filed on 5/2/2017) (Entered: 05/02/2017)
47 Unopposed MOTION for Extension of Time to File Joint Status Report filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Patton, Rodney) (Filed on 5/25/2017) Modified on 5/30/2017 (vlkS, COURT STAFF). (Entered: 05/25/2017)
Electronic filing error. Re: 47 Consent MOTION for Extension of Time to File filed by United States Department of Justice. In future filings, please caption documents with the correct case number, 4:16−cv−2041 HSG. (vlkS, COURT STAFF) (Filed on 5/26/2017) (Entered: 05/26/2017)
48 ORDER by Judge Haywood S. Gilliam, Jr. Granting 47 Defendants Unopposed Administrative Motion for an Extension ofthe Deadline for Filing a Joint Status Report (ndrS, COURT STAFF) (Filed on 5/30/2017) (Entered: 05/30/2017)
Reset Deadline Pursuant to Docket No. 48 : Joint Status Report due by 6/21/2017. (ndrS, COURT STAFF) (Filed on 5/30/2017) (Entered: 05/30/2017)
49 Joint Status Report by United States Department of Justice, Electronic Frontier Foundation. (Berman, Julia) (Filed on 6/21/2017) Modified on 6/22/2017 (vlkS, COURT STAFF). (Entered: 06/21/2017)
50 ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING the parties to file a joint status report of no more than five pages by July 19, 2017. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 6/22/2017) (Entered: 06/22/2017)
Set Deadline Pursuant to Docket No. 50 : Status Report due by 7/19/2017. (ndrS, COURT STAFF) (Filed on 6/22/2017) (Entered: 06/22/2017)
51 STATUS REPORT by United States Department of Justice. (Patton, Rodney) (Filed on 7/19/2017) (Entered: 07/19/2017)
52 ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING the parties to file a joint status report of no more than five pages by September 28, 2017. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 7/20/2017) (Entered: 07/20/2017)

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07/20/2017 09/28/2017 09/29/2017 12/18/2017 12/19/2017 01/08/2018 02/16/2018 02/20/2018
05/24/2018 05/24/2018 06/07/2018 06/08/2018 06/14/2018
07/02/2018

Set Deadline Pursuant to Docket No. 52 : Joint Status Report due by 9/28/2017. (ndrS, COURT STAFF) (Filed on 7/20/2017) (Entered: 07/20/2017)
53 STATUS REPORT by United States Department of Justice. (Patton, Rodney) (Filed on 9/28/2017) (Entered: 09/28/2017)
54 ORDER by Judge Haywood S. Gilliam, Jr. DENYING ( 29 , 32 ) CROSS−MOTIONS FOR SUMMARY JUDGMENT WITHOUT PREJUDICE. Joint Status Report due by 1/8/2018. (ndrS, COURT STAFF) (Filed on 9/29/2017) (Entered: 09/29/2017)
55 Consent MOTION for Extension of Time to File a Status Report Setting Forth A Summary Judgment Briefing Schedule filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Patton, Rodney) (Filed on 12/18/2017) (Entered: 12/18/2017)
56 ORDER by Judge Haywood S. Gilliam, Jr. Granting 55 Motion for Extension of Time to File Status Report Setting Forth A Summary Judgment Briefing Schedule. Status Report due by 2/16/2018. (ndrS, COURT STAFF) (Filed on 12/19/2017) (Entered: 12/19/2017)
57 JOINT STATUS REPORT by United States Department of Justice, Electronic Frontier Foundation. (Patton, Rodney) (Filed on 1/8/2018) Modified on 1/9/2018 (vlkS, COURT STAFF). (Entered: 01/08/2018)
58 JOINT STATUS REPORT AND PROPOSED BRIEFING SCHEDULE; AND (PROPOSED) ORDER by Electronic Frontier Foundation, United States Department of Justice (Mackey, Aaron) (Filed on 2/16/2018) Modified on 2/18/2018 (cpS, COURT STAFF). (Entered: 02/16/2018)
59 ORDER by Judge Haywood S. Gilliam, Jr. Granting 58 Stipulated PROPOSED BRIEFING SCHEDULE. Motions due by 5/24/2018; Cross Motions/Opposition due by 6/21/2018; Opposition (Cross)/Replies due by 7/19/2018; Replies (cross) due by 8/9/2018; Motion Hearing set for 8/23/2018 02:00 PM before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 2/20/2018) (Entered: 02/20/2018)
60 Unopposed Administrative Motion to Vacate Current Briefing Schedule and for an Order Requiring the Parties to Submit a Status Report in Two Weeks filed by United States Department of Justice. Responses due by 6/7/2018. Replies due by 6/14/2018. (Attachments: # 1 Proposed Order)(Patton, Rodney) (Filed on 5/24/2018) Modified on 5/24/2018 to correct text (ndrS, COURT STAFF). (Entered: 05/24/2018)
61 ORDER by Judge Haywood S. Gilliam, Jr. Granting 60 Unopposed Admin Motion to Vacate Current Briefing Schedule and for an Order Requiring the Parties to Submit a Status Report in Two Weeks. Status Report due by 6/7/2018. (ndrS, COURT STAFF) (Filed on 5/24/2018) (Entered: 05/24/2018)
62 JOINT STATUS REPORT and Proposed Briefing Schedule by United States Department of Justice, and Electronic Frontier Foundation. (Attachments: # 1 Proposed Order)(Patton, Rodney) (Filed on 6/7/2018) Modified on 6/8/2018 (jjbS, COURT STAFF). (Entered: 06/07/2018)
Electronic filing error. Re: 62 Status Report, filed by Electronic Frontier Foundation, United States Department of Justice. REMINDER TO COUNSEL: In the future, please be sure that the case number is correctly reflected on ALL as documents as 4:16−cv−02042−HSG. (jjbS, COURT STAFF) (Filed on 6/8/2018) (Entered: 06/08/2018)
63 ORDER GRANTING 62 Proposed Briefing Schedule: Motions due by 7/9/2018; Cross Motions/Oppositions due by 8/6/2018; Responses due by 9/6/2018; Replies due by 9/27/2018; Motion Hearing set for 10/25/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. Signed by Judge Haywood S. Gilliam, Jr. on 6/14/2018. (ndrS, COURT STAFF) (Filed on 6/14/2018) (Entered: 06/14/2018)
64 Consent MOTION for Extension of Time to File Motion for Partial Summary Judgment and to Amend Current Briefing Schedule filed by United States Department

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07/03/2018 07/26/2018 08/08/2018 08/23/2018 08/23/2018 08/24/2018
09/20/2018 10/10/2018 11/02/2018 11/08/2018
01/30/2019 03/26/2019

of Justice. (Attachments: # 1 Proposed Order)(Patton, Rodney) (Filed on 7/2/2018) (Entered: 07/02/2018)
65 ORDER by Judge Haywood S. Gilliam, Jr. Granting 64 Motion for Extension of Time to File.Motions due by 7/26/2018; Cross Motions due by 8/23/2018; Responses due by 9/20/2018; Replies due by 10/11/2018.; Motion Hearing set for 11/8/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 7/3/2018) (Entered: 07/03/2018)
66 MOTION for Partial Summary Judgment filed by United States Department of Justice. Motion Hearing set for 11/8/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 8/23/2018. Replies due by 9/20/2018. (Attachments: # 1 Declaration, # 2 Proposed Order)(Patton, Rodney) (Filed on 7/26/2018) (Entered: 07/26/2018)
67 NOTICE of Change In Counsel by Mark Thomas Rumold (Rumold, Mark) (Filed on 8/8/2018) (Entered: 08/08/2018)
68 Motion and Cross−Motion for Partial Summary Judgment and Opposition to 66 MOTION for Partial Summary Judgment filed byElectronic Frontier Foundation. (Attachments: # 1 Proposed Order)(Mackey, Aaron) (Filed on 8/23/2018) Modified on 8/24/2018 (jjbS, COURT STAFF). (Entered: 08/23/2018)
Set Hearing as to 68 MOTION and Cross−Motion for Partial Summary Judgment and Opposition: Motion Hearing set for 11/8/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 8/23/2018) (Entered: 08/27/2018)
Electronic filing error. Incorrect event used. In the Future, Please use the event "Motion for Partial Summary Judgment." Event can be found under Motions and Related Fi lings > Motions−General [err101]. Also, please be sure that the Oakland Division is correctly listed as the Court's location, not San Francisco.Corrected by Clerk's Office. No further action is necessary. Re: 68 MOTION and Cross−Motion for Partial Summary Judgment and Opposition filed by Electronic Frontier Foundation (jjbS, COURT STAFF) (Filed on 8/24/2018) (Entered: 08/24/2018)
69 REPLY (re 66 MOTION for Partial Summary Judgment , 68 MOTION and Cross−Motion for Partial Summary Judgment and Opposition ) filed byUnited States Department of Justice. (Attachments: # 1 Exhibit, # 2 Exhibit)(Patton, Rodney) (Filed on 9/20/2018) (Entered: 09/20/2018)
70 REPLY (re 68 MOTION and Cross−Motion for Partial Summary Judgment and Opposition ) filed byElectronic Frontier Foundation. (Attachments: # 1 Declaration of Aaron Mackey, # 2 Exhibit A)(Mackey, Aaron) (Filed on 10/10/2018) (Entered: 10/10/2018)
71 NOTICE of Appearance by Andrew Crocker (Crocker, Andrew) (Filed on 11/2/2018) (Entered: 11/02/2018)
72 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Motion Hearing held on 11/8/2018. Total Time in Court: 38 Minutes. Court Reporter: Pamela Batalo−Hebel. Plaintiff Attorney: Aaron Mackey and Andrew Crocker. Defendant Attorney: Rodney Patton. Defendants motion for partial summary judgment and plaintiffs motion for summary judgment (docket nos. 66 and 68 ) are argued and submitted by the parties, and taken under submission by the Court. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 11/8/2018) (Entered: 11/14/2018)
73 NOTICE of Change In Counsel by Nathan Daniel Cardozo (Cardozo, Nathan) (Filed on 1/30/2019) (Entered: 01/30/2019)
74 ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANTS 66 MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFFS CROSS 68 MOTION FOR PARTIAL SUMMARY JUDGMENT. Case Management Statement due by 4/5/2019 and Initial Case Management Conference set for 4/9/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor. (ndrS, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)

Case: 4:16-cv-02041-HSG As of: 04/09/2019 10:37 AM PDT 9 of 9

04/05/2019 04/05/2019 04/05/2019 04/05/2019

75 JOINT CASE MANAGEMENT STATEMENT filed by Electronic Frontier Foundation and United States Department of Justice. (Mackey, Aaron) (Filed on 4/5/2019) Modified on 4/8/2019 (jjbS, COURT STAFF). (Entered: 04/05/2019)
76 Proposed Order Final Judgment by Electronic Frontier Foundation. (Mackey, Aaron) (Filed on 4/5/2019) (Entered: 04/05/2019)
77 JUDGMENT in favor of United States Department of Justice against Electronic Frontier Foundation. Signed by Judge Haywood S. Gilliam, Jr. on 4/5/2019. (hsglc2S, COURT STAFF) (Filed on 4/5/2019) (Entered: 04/05/2019)
78 ORDER by Hon. Haywood S. Gilliam, Jr. VACATING the April 9, 2019 Case Management Conference, in light of 75 the parties' joint case management statement. Per the parties' agreement, the Court DIRECTS the parties to file by May 9, 2019 a joint status report of no more than three pages notifying the Court of the status of the parties' efforts to resolve the attorneys' fees and costs issue. The deadline for filing any motion for attorneys' fees and costs is hereby continued to May 23, 2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 4/5/2019) (Entered: 04/05/2019)

 
 Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 1 of 8

1 MARK RUMOLD (SBN 279060) mark@eff.org
2 NATHAN D. CARDOZO (SBN 259097) nate@eff.org
3 AARON MACKEY (SBN 286647) amackey@eff.org
4 ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street
5 San Francisco, CA 94109 Telephone: (415) 436-9333
6 Facsimile: (415) 436-9993

7 Attorneys for Plaintiff
8 ELECTRONIC FRONTIER FOUNDATION

9 UNITED STATES DISTRICT COURT

10 FOR THE NORTHERN DISTRICT OF CALIFORNIA

11 SAN FRANCISCO DIVISION

12 ELECTRONIC FRONTIER FOUNDATION, )

13 Plaintiff,
14
v. 15
UNITED STATES DEPARTMENT 16 OF JUSTICE,

)

) COMPLAINT FOR INJUNCTIVE

) ) )

RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT,

) 5 U.S.C. § 552

)

)

17

) Defendant. )

18

)

19

1. This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for

20 injunctive and other appropriate relief. Plaintiff seeks the release of records that Plaintiff requested

21 from Defendant United States Department of Justice (DOJ) concerning applications to the Federal

22 Intelligence Surveillance Court (FISC) and the court’s significant opinions and orders.

23 PARTIES

24

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

25 established under the laws of the Commonwealth of Massachusetts, with offices in San Francisco,

26 California and Washington, D.C. EFF is a donor-supported membership organization that works to

27 inform policymakers and the general public about civil liberties issues related to technology and to

28

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 2 of 8

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

2 disseminate information concerning the activities of federal agencies.

3

3. Defendant DOJ is an agency of the Executive Branch of the United States

4 Government. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f).

5 JURISDICTION

6

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

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

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

9 VENUE AND INTRADISTRICT ASSIGNMENT

10

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

11 § 1391(e).

12

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

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

14 division, where Plaintiff is headquartered.

15 FACTUAL ALLEGATIONS

16 The USA Freedom Act Requires Surveillance Court Transparency

17

7. The Foreign Intelligence Surveillance Court (FISC) reviews applications from the

18 government concerning national security surveillance. Since its creation in the 1970s, the FISC’s

19 role has gradually expanded. Where the court focused initially on granting applications to conduct

20 surveillance on particular targets, it is now increasingly asked to decide the legality, and

21 constitutionality, of entire programs of government surveillance.

22

8. In the past, the FISC typically considered government applications ex parte, and its

23 opinions and orders were, almost without exception, classified. Appellate rulings on the FISC’s

24 decisions by the Foreign Intelligence Surveillance Court of Review (FISCR) are similarly classified.

25 As the effect of the FISC and FISCR’s decisions expanded, the ex parte and classified nature of their

26 opinions proved increasingly problematic: the public was prevented from understanding how these

27 federal courts were interpreting surveillance laws and the Constitution, often in ways that implicated

28

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 3 of 8

1 citizens’ rights.

2

9. After the terrorist attacks of September 11, 2001, the FISC and FISCR were

3 increasingly called upon to decide significant or novel questions of federal or constitutional law—in

4 secret. This resulted in the creation of a vast body of secret federal surveillance law.

5

10. The tension between our democratic traditions of openness and access to the courts

6 and the growing body of secret surveillance law culminated in the Guardian newspaper disclosing a

7 then-classified order of the FISC in June 2013. The disclosure touched off a years-long debate about

8 the nature, scope, and propriety of our nation’s national security surveillance laws.

9

11. That debate spurred the passage, in June 2015, of the USA FREEDOM Act, Pub. L.

10 114-23, 129 Stat. 268 (June 2, 2015) (“USA Freedom”), which implemented a series of national

11 security surveillance reforms.

12

12. One aspect of USA Freedom’s reforms included the required declassification of

13 “significant” FISC and FISCR decisions. Specifically, Section 402(a) of USA Freedom states that:

14

the Director of National Intelligence, in consultation with the Attorney

General, shall conduct a declassification review of each decision, order, or

15

opinion issued by the Foreign Intelligence Surveillance Court or the Foreign

Intelligence Surveillance Court of Review (as defined in section 601(e))

16

that includes a significant construction or interpretation of any provision of

law, including any novel or significant construction or interpretation of the

17

term ‘specific selection term’, and, consistent with that review, make

publicly available to the greatest extent practicable each such decision,

18

order, or opinion.

19

13. Both before and since enactment of the USA Freedom, Plaintiff EFF has endeavored

20 to inform the public about the FISC’s role in national security surveillance by requesting, through

21 FOIA, certain FISC opinions and orders.

22

U.S. Government Seeks Court Orders to Compel Access to Encrypted Communications

23

14. As the public debated national security surveillance reform, the government quietly

24 began increasing pressure on companies to provide access to encrypted communications or to

25 provide other types of technical assistance to access private communications.

26

15. For example, one news report indicated that the government had considered taking

27 Apple, Inc. (“Apple") to court after the Department of Justice obtained a court order requiring the

28 company to provide real-time access to its customers’ encrypted iMessages. Apple represented it

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 4 of 8

1 was unable to comply with an order it had received because it could not decrypt the

2 communications. Matt Apuzzo, David E. Sanger, and Michael S. Schmidt, Apple and Other Tech

3 Companies Tangle With U.S. Over Data Access, The New York Times (Sept. 7, 2015).

4

16. Then, in February, the Federal Bureau of Investigation (FBI) obtained a court order

5 requiring Apple to write software and digitally sign it so that the FBI could defeat built-in security

6 measures on an iPhone. Apple contested the order. Eric Lichtblau & Katie Benner, Apple Fights

7 Order to Unlock San Bernardino Gunman’s iPhone, The New York Times (Feb. 17, 2016).

8

17. Although the examples described in Paragraphs 16 and 17 occurred in traditional

9 federal courts, the FISC also has jurisdiction to consider compelled technical assistance. The Foreign

10 Intelligence Surveillance Act (“FISA”), 50 U.S.C. ch. 36, allows the government to seek technical

11 assistance from third parties with respect to any application it seeks or order or opinion it receives

12 from the FISC. See, e.g., 50 U.S.C. § 1805(c)(2)(B).

13

18. News outlets have reported that the government has sought FISC orders and opinions

14 that required private companies to turn over their source code so that the government can identify

15 and exploit vulnerabilities for its own surveillance purposes. Zack Whittaker, US Government

16 Pushed Tech Firms to Hand Over Source Code, ZDNet (March 17, 2016).

17

19. Plaintiff EFF seeks to inform the public about the extent to which the government has

18 used FISA and the FISC to compel private companies into providing assistance that would

19 undermine the safety and security of millions of people who rely on software and the devices that

20 run them, such as the iPhone, every day.

21 Plaintiff’s FOIA Requests

22

Plaintiff’s FOIA for FISC orders requiring technical assistance of third parties

23

20. In a letter dated October 8, 2015, Plaintiff filed a FOIA request with the National

24 Security Division of Defendant DOJ (Oct. 8 FOIA). The request sought:

25

• Any applications to the Foreign Intelligence Surveillance Court (“FISC”)

26

that included requests for technical assistance under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. ch. 36.

27

• Any written FISC opinions or orders regarding any applications submitted

28

to the court that included requests for technical assistance under FISA.

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 5 of 8

1 • Any related briefing or correspondence with the FISC, its staff, or any

2

third party (including but not limited to Apple, Inc. and its attorneys)

concerning applications submitted to the court that included requests for

3

technical assistance under FISA.

4

21. In the Oct. 8 FOIA, Plaintiff also sought expedited processing of its request as well as

5 the media fee waiver and public interest fee waiver.

6

22. On November 23, 2015, Defendant acknowledged Plaintiff’s Oct. 8 FOIA request via

7 e-mail and granted its requests for expedited processing and fee waivers.

8

23. On December 16, 2015, Defendant provided its final response to the Oct. 8 FOIA via

9 letter. In DOJ’s final response, Defendant stated “we understand your request to be limited to

10 applications, orders, and related briefs and correspondence specifically concerning requests for

11 technical assistance ordering the decryption of, or assistance in decrypting, encrypted electronic

12 communications.”

13

24. Defendant further stated:

We have processed your request and identified no responsive applications

14

to the FISC. Relatedly, we have also not identified any FISC opinions, FISC

orders, or briefing regarding such applications. We have identified two

15

items of potentially responsive correspondence. We have determined that

both of these records are exempt from disclosure under the Freedom of

16

Information Act pursuant to 5 U.S.C. 552 (b)(1).

17

25. On January 22, 2016, Plaintiff filed an administrative appeal of Defendant’s final

18 response via mail and Defendant’s online FOIA portal. Plaintiff appealed on grounds that Defendant

19 had failed to conduct an adequate search for records responsive to its Oct. 8 FOIA request and that

20 Defendant had improperly withheld records under FOIA. Plaintiff sought expedited processing of its

21 administrative appeal.

22

26. On February 1, 2016, Defendant acknowledged receipt of Plaintiff’s administrative

23 appeal via email.

24

27. On February 11, 2016, Defendant sent Plaintiff a second acknowledgement of its

25 administrative appeal via email. In that correspondence, Defendant granted Plaintiff’s request for

26 expedited processing of the administrative appeal.

27

28

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 6 of 8

1

28. On April 4, 2016, Defendant denied Plaintiff’s administrative appeal via a letter that

2 stated it was “affirming, on partly modified grounds,” the agency’s initial denial of Plaintiff’s Oct. 8

3 FOIA.

4

29. In denying the administrative appeal of Plaintiff’s Oct. 8 FOIA, Defendant stated that

5 if Plaintiff was “dissatisfied with my action on your appeal, the FOIA permits you to file a lawsuit in

6 federal district court in accordance with 5 U.S.C. § 552(a)(4)(B).” Thus, Plaintiff has exhausted all

7 applicable administrative remedies.

8

30. Defendant continues to wrongfully withhold the requested records from Plaintiff.

9

Plaintiff’s FOIA request for significant or novel FISC opinions and orders

10

31. In a letter dated March 7, 2016, Plaintiff filed another FOIA request with the National

11 Security Division of the DOJ (March 7 FOIA). The request sought:

12

• Any “decision, order, or opinion issued by the Foreign Intelligence

Surveillance Court or the Foreign Intelligence Surveillance Court of Review

13

(as defined in section 601(e)),” issued from 1978 to June 1, 2015, “that

includes a significant construction or interpretation of any provision of law,

14

including any novel or significant construction or interpretation of the term

‘specific selection term.’” USA FREEDOM Act, Pub. L. 114-23, § 402(a)

15

(2015), codified at 50 U.S.C. § 1872(a).

16

• Any “decision, order, or opinion issued by the Foreign Intelligence

Surveillance Court or the Foreign Intelligence Surveillance Court of Review

17

(as defined in section 601(e)),” issued from June 2, 2015 to present, “that

includes a significant construction or interpretation of any provision of law,

18

including any novel or significant construction or interpretation of the term

‘specific selection term.’” USA FREEDOM Act, Pub. L. 114-23, § 402(a)

19

(2015), codified at 50 U.S.C. § 1872(a).

20

32. Plaintiff’s March 7 FOIA request also sought the media fee waiver and public interest

21 fee waiver.

22

33. By letter dated March 14, 2016, Defendant acknowledged receipt of Plaintiff’s March

23 7 FOIA request.

24

34. On March 25, 2016, the parties discussed ways Defendant could prioritize its review

25 of FISC opinions responsive to Plaintiff’s second request. By email on April 5, 2016, Plaintiff

26 provided various suggestions for prioritization of opinions and orders that should be declassified and

27 released.

28

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 7 of 8

1

35. As of the date of the filing of this Complaint, Defendant has failed to respond

2 substantively to Plaintiff’s March 7 FOIA request.

3

36. As the statutory time period by which Defendant must respond to Plaintiff’s March 7

4 FOIA request has passed, Plaintiff has exhausted all applicable administrative remedies.

5

37. Defendant continues to wrongfully withhold the requested records from Plaintiff.

6 CAUSES OF ACTION

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

8

38. Plaintiff repeats and realleges paragraphs 1-37.

9

39. Defendant has wrongfully withheld agency records requested by Plaintiff by failing to

10 conduct an adequate search for records responsive to Plaintiff’s request, by failing to produce all

11 records in the agency’s possession responsive to Plaintiff’s request, and by failing to adequately

12 segregate responsive from non-responsive records.

13

40. Plaintiff has exhausted applicable administrative remedies with respect to

14 Defendant’s wrongful withholding of the requested records.

15

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

16 requested documents.

17 REQUESTED RELIEF
18 WHEREFORE, Plaintiff prays that this Court:

19

42. order Defendant and its components to process immediately the requested records in

20 their entirety;

21

43. order Defendant to disclose the requested records in their entirety and make copies

22 available to Plaintiff;

23

44. order Defendant to waive all fees associated with the processing and release of the

24 requested records;

25

45. provide for expeditious proceedings in this action

26

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

27

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

28

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

Case 4:16-cv-02041-HSG Document 1 Filed 04/19/16 Page 8 of 8

1 DATED: April 19, 2016
2 3 4 5 6

By /s/ Mark Rumold Mark Rumold Nathan D. Cardozo Aaron Mackey ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 mark@eff.org

7

Attorneys for Plaintiff

ELECTRONIC FRONTIER FOUNDATION

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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COMPLAINT FOR INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

 
 Case 4:16-cv-02041-HSG Document 74 Filed 03/26/19 Page 1 of 18

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

ELECTRONIC FRONTIER

FOUNDATION, 8

Plaintiff,

9

v.

10

UNITED STATES DEPARTMENT OF

11

JUSTICE,

12

Defendant.

Case No. 16-cv-02041-HSG
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT
Re: Dkt. Nos. 66, 68

13

14

Pending before the court is the motion for partial summary judgment filed by Defendant

15 U.S. Department of Justice, Dkt. No. 66, and the cross-motion for partial summary judgment filed

16 by Plaintiff Electronic Frontier Foundation (“EFF”), Dkt. No. 68. For the following reasons, the

17 Court GRANTS Defendant’s motion and DENIES Plaintiff’s motion.

18

I. BACKGROUND

19

On April 19, 2016, EFF filed this action under the Freedom of Information Act (“FOIA”),

20 5 U.S.C. § 552, seeking release of records concerning applications to the Federal Intelligence

21 Surveillance Court (“FISC”) and related opinions and orders. Dkt. No. 1 (“Compl.”) ¶ 1.

22

According to the Complaint, FISC reviews applications from the government concerning

23 national security surveillance. Id. ¶ 7. Historically, FISC opinions and appellate decisions by the

24 Foreign Intelligence Surveillance Court of Review (“FISCR”) were ex parte and classified. Id.

25 ¶ 8. However, the USA FREEDOM Act, which was passed in the wake of the September 11th,

26 2001 terrorist attacks, required a declassification review of “significant” FISC and FISCR

27 decisions. Id. ¶¶ 9–12. Plaintiff alleges that recently the government has been using court orders

28 to pressure private companies to provide access to encrypted communications, as was allegedly

Case 4:16-cv-02041-HSG Document 74 Filed 03/26/19 Page 2 of 18

United States District Court Northern District of California

1 done following the San Bernardino shootings. Id. ¶¶ 14–18. Through this FOIA action, Plaintiff

2 “seeks to inform the public about the extent to which the government has used FISA and the FISC

3 to compel private companies into providing assistance that would undermine the safety and

4 security of millions of people who rely on software and the devices that run them, such as the

5 iPhone, every day.” Id. ¶ 19.

6

Currently at issue is one FOIA request: a request for all decisions, orders, or opinions

7 issued by FISC or FISCR between 1978 and June 1, 2015, that include a significant construction

8 or interpretation of any law, including a significant construction of a “specific selection term”

9 under the USA FREEDOM Act. See id. ¶ 31; Dkt. No. 68 at 3. The government identified

10 seventy-nine (79) responsive FISC opinions, and eventually agreed to release seventy-three (73) of

11 those opinions, in full or in part. Dkt. No. 68 at 3–4. The remaining six opinions are the subject

12 of these cross motions for summary judgment. The government contends that these six documents

13 are exempted from disclosure under FOIA Exemptions 1, 3, 6, 7(A), 7(C), and 7(E). Dkt. No. 66

14 at 1. Plaintiff argues that the USA FREEDOM Act requires the government to conduct a

15 declassification review and either declassify and release the six opinions, or create an unclassified

16 summary of each of the opinions. Dkt. No. 68 at 2. Plaintiff contends that because the

17 government has not complied with the declassification requirements, it has failed to meet its

18 burden under FOIA to withhold the six documents. Id. at 7. Plaintiff articulates a single claim for

19 relief: violation of FOIA for wrongful withholding of the six undisclosed agency records. Compl.

20 ¶¶ 38-41.

21 II. SUMMARY JUDGMENT STANDARD

22

Summary judgment is proper when a “movant shows that there is no genuine dispute as to

23 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

24 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson

25 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is evidence in the

26 record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The

27 Court views the inferences reasonably drawn from the materials in the record in the light most

28 favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 2

Case 4:16-cv-02041-HSG Document 74 Filed 03/26/19 Page 3 of 18

United States District Court Northern District of California

1 574, 587–88 (1986), and “may not weigh the evidence or make credibility determinations,”

2 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v.

3 Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). If a court finds that there is no genuine dispute of

4 material fact as to only a single claim or defense or as to part of a claim or defense, it may enter

5 partial summary judgment. Fed. R. Civ. P. 56(a).

6

With respect to summary judgment procedure, the moving party bears both the ultimate

7 burden of persuasion and the initial burden of producing those portions of the pleadings,

8 discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp.

9 v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will not bear the burden of proof on

10 an issue at trial, it “must either produce evidence negating an essential element of the nonmoving

11 party’s claim or defense or show that the nonmoving party does not have enough evidence of an

12 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins.

13 Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Where the moving party will bear the

14 burden of proof on an issue at trial, it must also show that no reasonable trier of fact could not find

15 in its favor. Celotex Corp., 477 U.S. at 325. In either case, the movant “may not require the

16 nonmoving party to produce evidence supporting its claim or defense simply by saying that the

17 nonmoving party has no such evidence.” Nissan Fire & Marine Ins. Co., 210 F.3d at 1105. “If a

18 moving party fails to carry its initial burden of production, the nonmoving party has no obligation

19 to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at

20 trial.” Id. at 1102–03.

21

“If, however, a moving party carries its burden of production, the nonmoving party must

22 produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party

23 “must do more than simply show that there is some metaphysical doubt as to the material facts.”

24 Matsushita Elec. Indus. Co., 475 U.S. at 586. A nonmoving party must also “identify with

25 reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91

26 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its

27 claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp., 477 U.S.

28 at 323. 3

United States District Court Northern District of California

Case 4:16-cv-02041-HSG Document 74 Filed 03/26/19 Page 4 of 18
A. FOIA 1
FOIA, codified as 5 U.S.C. § 552, “was enacted to facilitate public access to Government 2
documents.” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (quotations 3
omitted). The goal of FOIA is to “ensure an informed citizenry, vital to the functioning of a 4
democratic society, needed to check against corruption and to hold the governors accountable to 5
the governed.” Id. (quotations omitted). At the same time, FOIA contemplates that the 6
government may have legitimate reasons for withholding some information from the public. Id. 7
Accordingly, FOIA “requires federal agencies to make Government records available to the 8
public, subject to nine exemptions for specific categories of material.” Milner v. Dep’t of Navy, 9
562 U.S. 562, 564 (2011). These nine FOIA exemptions are “explicitly made exclusive and must 10
be narrowly construed.” Id. at 565 (quotation omitted). 11
A defendant agency “must show that its search for responsive records was adequate, that 12
any claimed exemptions actually apply, and that any reasonably segregable, non-exempt parts of 13
records have been disclosed after redaction of exempt information.” Light v. Dep’t of Justice, 968 14
F. Supp. 2d 11, 23 (D.D.C. 2013); accord Lahr, 569 F.3d at 973; Pac. Fisheries, Inc. v. United 15
States, 539 F.3d 1143, 1148 (9th Cir. 2008). The agency bears the burden to show that it has 16
complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B). “[G]overnment agencies 17
seeking to withhold documents requested under the FOIA have been required to supply the 18
opposing party and the court with a ‘Vaughn index,’ identifying each document withheld, the 19
statutory exemption claimed, and a particularized explanation of how disclosure of the particular 20
document would damage the interest protected by the claimed exemption. The purpose of the 21
index is to afford the FOIA requester a meaningful opportunity to contest, and the district court an 22
adequate foundation to review, the soundness of the withholding.” Wiener v. F.B.I., 943 F.2d 972, 23
977–78 (9th Cir. 1991) (citations and quotations omitted). 24
FOIA cases are typically decided on motions for summary judgment because the facts are 25
rarely in dispute. See Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). On a 26
motion for summary judgment, a district court analyzes the withholding of documents de novo. 5 27
U.S.C. § 552(a)(4)(B). FOIA permits a district court to enjoin a defendant agency from 28
4

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1 withholding agency records or to order a defendant agency to produce any improperly withheld

2 records. Id.

3

B. USA FREEDOM Act

4

The USA FREEDOM Act was signed into law on June 2, 2015. The purpose of the USA

5 FREEDOM Act was to reform the data collection process under existing statutory schemes and

6 provide greater oversight provisions to protect the privacy and civil liberties of individuals. H.R.

7 Rep. No. 114-109, at 6 (2015). Relevant here, Section 402 of the USA FREEDOM Act (“Section

8 402”), codified as 50 U.S.C.A. § 1872, requires conditional declassification of certain FISC and

9 FISCR opinions:

10

Declassification Required.--Subject to subsection (b), the Director of

National Intelligence, in consultation with the Attorney General, shall

11

conduct a declassification review of each decision, order, or opinion

issued by the Foreign Intelligence Surveillance Court or the Foreign

12

Intelligence Surveillance Court of Review (as defined in section

601(e)) that includes a significant construction or interpretation of any

13

provision of law, including any novel or significant construction or

interpretation of the term `specific selection term', and, consistent

14

with that review, make publicly available to the greatest extent

practicable each such decision, order, or opinion. 15

Pub. L. No 114-23, § 402(a) (2015); 50 U.S.C. § 1872(a).

16

Section 402 further provides for the production of an unclassified summary of certain

17

opinions that cannot be released:

18

The Director of National Intelligence, in consultation with the

19

Attorney General, may waive the requirement to declassify and make

publicly available a particular decision, order, or opinion under

20

subsection (a), if--

(1) the Director of National Intelligence, in consultation with

21

the Attorney General, determines that a waiver of such requirement is

necessary to protect the national security of the United States or

22

properly classified intelligence sources or methods; and

(2) the Director of National Intelligence makes publicly

23

available an unclassified statement prepared by the Attorney General,

in consultation with the Director of National Intelligence--

24

(A) summarizing the significant construction or

interpretation of any provision of law, which shall include, to the

25

extent consistent with national security, a description of the context

in which the matter arises and any significant construction or

26

interpretation of any statute, constitutional provision, or other legal

authority relied on by the decision; and

27

(B) that specifies that the statement has been prepared by

the Attorney General and constitutes no part of the opinion of the

28

Foreign Intelligence Surveillance Court or the Foreign Intelligence

5

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Case 4:16-cv-02041-HSG Document 74 Filed 03/26/19 Page 6 of 18
Surveillance Court of Review. 1
Pub. L. No. 114-23, § 402(c) (2015); 50 U.S.C. § 1872(c). 2
III. DISCUSSION 3
The pivotal issue here is whether Section 402 bars Defendant from relying on FOIA 4
Exemptions 1 and 3 to withhold the six FISC opinions, because, as Plaintiff alleges, there is no 5
evidence that a declassification review was conducted, as required by Section 402. Dkt. No. 68 at 6
7. Put another way, the Court must decide whether it can essentially enforce the declassification 7
mandate under Section 402 through a FOIA action. This may include determining whether the 8
USA FREEDOM Act applies retroactively. See Dkt. No. 66 at 19–25; Dkt. No. 68 at 11–14. If 9
Section 402 does not prevent the government from relying on the FOIA exemptions, then the 10
inquiry is whether the government properly withheld the six opinions and whether the Vaughn 11
index it provided was sufficient to satisfy FOIA requirements. 12
A. FOIA AND THE FREEDOM ACT 13
The parties agree that Section 402 creates no private cause of action to enforce the 14
declassification of FISC opinions. See Dkt. No. 66 at 16; Dkt. No. 70 at 4. Plaintiff contends that 15
because the government did not submit evidence that it has performed the declassification review 16
required by Section 402, then either (1) the six opinions are improperly classified and not subject 17
to withholding under FOIA Exemptions 1 or 3, or (2) the Vaughn index provided by the 18
government is inadequate to serve as a “declassification summary,” because it does not provide 19
the information required in Section 402. See 50 U.S.C.A. § 1872(c)(2)(A) (stating that summary 20
“shall include, to the extent consistent with national security, a description of the context in which 21
the matter arises and any significant construction or interpretation of any statute, constitutional 22
provision, or other legal authority relied on by the decision.”). 23
Although Plaintiff presents a creative argument, the Court agrees with Defendant that 24
Plaintiff cannot enforce Section 402 through this FOIA action. See Dkt. No. 69 at 2. While courts 25
have not addressed this specific issue, the Court is persuaded by the decisions of courts 26
interpreting FOIA’s relationship with other disclosure statutes. See, e.g., Minier, 88 F.3d at 799. 27
In Minier, plaintiff sought disclosure from the Central Intelligence Agency (“CIA”) under 28
6

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1 FOIA of information regarding a potential CIA agent’s alleged involvement in President John F.

2 Kennedy’s assassination. 88 F.3d at 799. The CIA denied plaintiff’s request under FOIA

3 Exemptions 1 and 3. Id. at 800. The plaintiff did not contest the applicability of the exemptions,

4 but instead attempted to circumvent them by arguing that the President John F. Kennedy

5 Assassination Records Collection Extension Act of 1994 (the “JFK Act”) mandated disclosure of

6 the requested information under FOIA. Id. at 802. The JFK Act provides that “all Government

7 records concerning the assassination of President John F. Kennedy should carry a presumption of

8 immediate disclosure.” Id. (citing JFK Act § 2(a)(2)). Congress’s enactment of the JFK Act in

9 part was a response to FOIA “prevent[ing] the timely disclosure of records relating to the

10 assassination of President John F. Kennedy.” Id. (citing JFK Act § 2(a)(5)).

11

The Ninth Circuit rejected the plaintiff’s argument (and noted that the D.C. Circuit and

12 First Circuit rejected similar arguments), reasoning that the JFK Act explicitly provided that

13 “[n]othing in this Act shall be construed to eliminate or limit any right to file requests ... or seek

14 judicial review of the decisions pursuant to [FOIA].” Id. (citing JFK Act § 11(b)) (brackets in

15 original). “Had Congress intended the JFK Act to alter the procedure for reviewing FOIA

16 requests, presumably it would have expressly said so.” Id.; see also Assassination Archives and

17 Research Center v. Department of Justice, 43 F.3d 1542, 1544 (D.C. Cir. 1995) (“There is no

18 evidence that Congress intended that the JFK Act standards be applied to FOIA review of

19 documents involving the Kennedy assassination.”). Therefore, even though it was “undoubtedly

20 true that the JFK Act was motivated by less than adequate FOIA responses to Kennedy

21 assassination record requests,” the purpose was to require agencies to release information relating

22 to the Kennedy assassination, not to override the ability of the government to claim proper FOIA

23 exemptions. Minier, 88 F.3d at 802; see also Assassination Archives, 43 F.3d at 1544 (“Congress

24 evidently hoped that prompt administrative application of the Act’s broader criteria for release

25 would moot considerable FOIA litigation and would benefit those FOIA requesters who had long

26 sought access to assassination records.”).

27

While the USA FREEDOM Act does not explicitly refer to FOIA, the JFK Act is similar in

28 that it mandates disclosure of records that the FOIA exemptions may protect from disclosure. See 7

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1 JFK Act § 2(a)(2) (requiring disclosure of records concerning the assassination of President John

2 F. Kennedy); 50 U.S.C.A. § 1872(a) (requiring disclosure of FISC opinions that are declassified).

3 Both statutes also have their own mechanism for review: under the JFK Act, the Assassination

4 Records Review Board evaluates the documents to determine whether they qualify as

5 assassination records, see Assassination Archives, 43 F.3d at 1543, and under the USA

6 FREEDOM Act, the Director of National Intelligence, in consultation with the Attorney General,

7 conducts a declassification review to determine if FISC documents were properly classified. 50

8 U.S.C. § 1872. Absent clear evidence that Congress intended Section 402 to be applied when

9 reviewing FOIA exemptions, the Court will not impute such an intent to hybridize two statutory

10 schemes. See Assassination Archives, 43 F.3d at 1544 (“We thus find no statutory warrant for

11 creating a private right of action to enforce the JFK Act, either directly by implying such a cause

12 of action, or through the subterfuge of judicially hybridizing the two acts.”). The purpose of

13 Section 402 was to allow for more transparency of FISC and FISCR opinions by requiring the

14 Director of National Intelligence and the Attorney General to release information that they

15 determined were not classified, not to override “the ability of the government to claim proper

16 FOIA exemptions.” See Minier, 88 F.3d at 802

17

The Court is also persuaded by Defendant’s argument that Plaintiff’s theory would

18 require the Court to mandate a remedy that lies outside of FOIA. Dkt. No. 69 at 5. Although

19 Plaintiff contends it is only requesting that the Court “interpret Section 402, not enforce it,” Dkt.

20 No. 70 at 3, Plaintiff plainly seeks to enforce Section 402’s requirements. If the Court finds that

21 the USA FREEDOM Act imposes additional requirements that Defendant failed to satisfy when

22 claiming FOIA Exemptions 1 and 3, then according to Plaintiff, Defendant must either release the

23 opinions, or include unclassified summaries as part of its Vaughn Index to reasonably justify

24 withholding them. Dkt. No. 70 at 7. Assuming there is no dispute as to whether these six

25 opinions were properly classified, Plaintiff would have the Defendant provide the unclassified

26 summaries as part of its Vaughn index. Dkt. No. 68 at 17. But the content of the unclassified

27 summaries is different than what is required under FOIA. Under FOIA, a Vaughn index requires

28 the government to “identify[] each document withheld, the statutory exemption claimed, and a 8

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1 particularized explanation of how disclosure of the particular document would damage the interest

2 protected by the claimed exemption.” See Freedom of the Press Found. v. United States Dep’t of

3 Justice, 241 F. Supp. 3d 986, 996–97 (N.D. Cal. 2017) (quotations omitted). The unclassified

4 summaries, by contrast, require a statement by the Attorney General that summarizes the actual

5 construction or interpretation of any law and a description of the context, which are not required

6 under FOIA. See 50 U.S.C. § 1872(c). The Court agrees with Defendant that using FOIA to

7 enforce Section 402 would require the Court to impose remedies outside of FOIA’s requirements.

8 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (“The [FOIA] Act

9 does not obligate agencies to create or retain documents; it only obligates them to provide access

10 to those which it in fact has created and retained.”).

11

Plaintiff relies on two cases for its proposition that the Court may interpret the USA

12 FREEDOM Act to determine whether information is properly withheld under FOIA. See Dkt. No.

13 68 at 8 (citing Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) and

14 Long v. U.S. I.R.S., 742 F.2d 1173 (9th Cir. 1984)). Both cases involve interpretation of a

15 statutory or executive order authority proffered by the government as justification for FOIA

16 withholding. These cases are distinguishable from this action. In Long, the statue at issue, section

17 6103 of the Economic Recovery Tax Act (“ERTA”), was a nondisclosure statute amended for the

18 specific purpose of targeting two previous FOIA cases that sought disclosure of the same

19 documents. 742 F.2d at 1176 (“It is clear from the legislative history of the amendment that

20 Congress was targeting these [two previous FOIA cases].”). The Ninth Circuit held that section

21 6103 qualified as an exemption statue under FOIA Exemption 3, because Exemption 3 was

22 “designed to give effect to just such explicit nondisclosure statutes as section 6103.” Id. at 1178.

23 The Long court also found it persuasive that section 6110, another section in the ERTA, had its

24 own set of procedures for disclosure requests, indicating that Congress intended section 6110 to be

25 excluded from FOIA. Id. Section 6110 was, like the JFK Act and Section 402, a disclosure

26 provision rather than a nondisclosure provision. See 26 U.S.C. § 6110(a) (“Except as otherwise

27 provided in this section, the text of any written determination and any background file document

28 relating to such written determination shall be open to public inspection at such place as the 9

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1 Secretary may by regulations prescribe.”). The Long court found that the absence of similar

2 procedures in section 6103 reflected Congress’s intent that section 6103 would fall within the

3 FOIA regime. 742 F.2d at 1178. In contrast, this action concerns the opposite situation: Plaintiff

4 seeks the disclosure of documents under Section 402 despite FOIA exemptions protecting them

5 from disclosure. The Court finds that Section 402 is more similar to the disclosure statute of 6 section 6110 of ERTA than to section 6103.1

7

Accordingly, the Court finds that it does not have the authority to engraft Section 402’s

8 declassification mandate in evaluating whether Defendant has properly asserted FOIA exemptions.

9 As such, the Court does not need to address the issue of whether Section 402 applies 10 retroactively.2

11

B. FOIA EXEMPTIONS

12

Having reached the conclusion that Section 402 does not impose additional requirements

13 in a FOIA action, the Court now turns to whether the government properly withheld the six

14 documents under FOIA exemptions. To properly withhold the documents, the government bears

15 the burden of showing that “its search for responsive records was adequate, that any claimed

16 exemptions actually apply, and that any reasonably segregable, non-exempt parts of records have

17 been disclosed after redaction of exempt information.” Light, 968 F. Supp. 2d 11 at 23. Plaintiff

18 does not challenge the adequacy of the government’s search, but does dispute whether the

19 government has demonstrated the latter two requirements. See Dkt. No. 66 at 4.

20

“FOIA’s strong presumption in favor of disclosure places the burden on the government to

21 show that an exemption properly applies to the records it seeks to withhold.” Hamdan v. U.S.

22 Dep’t of Justice, 797 F.3d 759, 772 (9th Cir. 2015). When a government agency seeks to withhold

23

24

1 ACLU is similarly distinguishable. In ACLU, the D.C. Circuit held that it was proper for the government to interpret executive orders to determine the classification of certain documents,

25

since that is exactly what FOIA Exemption 1 requires the government to do. 628 F.3d at 619–25; see 5 U.S.C. § 522(b)(1) (preventing disclosure of documents “specifically authorized under

26

criteria established by an Executive order to be kept secret”). 2 Although the Court need not address this issue, the Court notes that a district court in the District

27

of Columbia has held that Section 402 does not apply retroactively. Elec. Privacy Info. Ctr. v. Dep’t of Justice, 296 F. Supp. 3d 109, 127 (D.D.C. 2017) (“What is more, the FREEDOM ACT

28

was enacted in June 2015—well after the reports at issue here were created—and there is nothing to indicate that Congress intended the statute to apply retroactively to prior FISC decisions.”)

10

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1 documents under FOIA exemptions, courts have required the agency “to supply the opposing

2 party and the court with a Vaughn index, identifying each document withheld, the statutory

3 exemption claimed, and a particularized explanation of how disclosure of the particular document

4 would damage the interest protected by the claimed exemption.” Wiener, 943 F.2d at 977. The

5 purpose of a Vaughn index and any accompanying affidavits is to “afford the FOIA requester a

6 meaningful opportunity to contest, and the district court an adequate foundation to review, the

7 soundness of the withholding,” and thus partially restore the adversary process to judicial review

8 of the agency’s decision. Id. at 977–78. “Specificity is the defining requirement of the Vaughn

9 index.” Id. at 979.

10

“Where the government invokes FOIA exemptions in cases involving national security

11 issues, [courts] are required to accord substantial weight to the agency’s affidavits.” Hamdan, 797

12 F.3d at 769 (quotations omitted). A court must be mindful of its “limited institutional expertise on

13 intelligence matters, as compared with the executive branch.” Id. at 770. However, the affidavits

14 still “must describe the justifications for nondisclosure with reasonably specific detail,

15 demonstrate that the information withheld logically falls within the claimed exemptions, and show

16 that the justifications are not controverted by contrary evidence in the record or by evidence of

17 agency bad faith.” Id. at 769 (quotations omitted). “[A]n agency’s justification for invoking a

18 FOIA exemption is sufficient if it appears logical or plausible.” Id. at 774 (quotations omitted).

19 “If the affidavits contain reasonably detailed descriptions of the documents and allege facts

20 sufficient to establish an exemption, the district court need look no further.” Lane v. Dep’t of

21 Interior, 523 F.3d 1128, 1135–36 (9th Cir. 2008) (quotations omitted).

22

Here, Defendant is withholding the following six documents in their entirety under the

23 following FOIA exemptions:

24

Doc. #

Document Type

Exemption

25

1 FISC Supplemental Order

1, 3, 6, 7(A), 7(C), 7(E)

2 FISC Primary Order

1, 3, 6

26

3 FISC Amendment to Primary Order 1, 3, 6

27

4 FISC Primary Order 5 FISC Supplemental Opinion

1, 3, 6 1, 3, 6

28

6 FISC Order

1, 3

11

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1 Dkt. No. 66 at 4. Plaintiff does not challenge the applicability of FOIA Exemption 6 and 7(C),

2 and thus only challenges the applicability of FOIA Exemptions 1, 3, 7(A), and 7(E). Id. The main

3 thrust of Plaintiff’s arguments regarding Exemptions 1 and 3 is that Defendant did not comply

4 with the USA FREEDOM Act, the same contention that the Court rejected above. See Dkt. No.

5 68 at 15 (“The government cannot show that the Six Opinions have been properly classified to

6 Exemption 1’s standard because they have not demonstrated that they have complied with USA

7 FREEDOM Act’s declassification review requirements.”); 16 (“With respect to [Exemption 3

8 statutes,] USA FREEDOM, however, not only authorizes the Director of National Intelligence to

9 disclose the records at issue here, but requires him to disclose them ‘to the greatest extent

10 practicable’ or to certify that they cannot be disclosed and to create a declassified summary of

11 them.”) The Court now addresses whether Defendant properly withheld the six documents under

12 the FOIA exemptions.

13

i. Exemption 1 – Classified Information

14

Defendant withheld six documents in full, consisting of 46 pages total, under Exemption 1

15 as containing classified information in accordance with Executive Order 13526 § 1.1(a) and 1.2(a). 16 Dkt. No. 66-1, Ex. A (“Gaviria Decl.”) ¶¶ 20–23. 3 Specifically, these documents fall under one or

17 more of the classification categories of “intelligence activities,” “intelligence sources or methods,”

18 “foreign relations or foreign activities of the United States, including confidential sources,” and

19 “the capabilities of systems [ ] relating to national security.” Id. ¶ 23.

20

Exemption 1 protects from disclosure documents that are “specifically authorized under

21 criteria established by an Executive order to be kept secret in the interest of national defense or

22 foreign policy and [ ] are in fact properly classified pursuant to such Executive order.” 5 U.S.C.

23 § 552(b)(1). Executive Order 13526 permits an agency to classify information as national security

24 information if:

25

(1) an original classification authority is classifying the information;

26

27

3 All references to the “Gaviria Decl.” or “Gaviria Declaration” are to the Declaration of Patricia Gaviria, Director of Information Management Division, Office of the Director of National

28

Intelligence, attached as Exhibit A to Defendant’s motion for partial summary judgment, filed on July 26, 2018. See Dkt. No. 66-1.

12

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(2) the information is owned by, produced by or for, or is under the

1

control of the United States Government;

(3) the information falls within one or more of the categories of

2

information listed in section 1.4 of [Executive Order 13526]: and

(4) the original classification authority determines that the

3

unauthorized disclosures of the information reasonably could be

expected to result in damage to the national security, which includes

4

defense against transnational terrorism, and the original classification

authority is able to identify or describe the damage. 5

Exec. Order 13526 § 1.1(a). Executive Order 13526 § 1.2(a) categorizes classified information

6

into one of the following three levels:

7

(1) “Top Secret” shall be applied to information, the unauthorized

8

disclosure of which reasonably could be expected to cause

exceptionally grave damage to the national security that the original

9

classification authority is able to identify or describe.

(2) “Secret” shall be applied to information, the unauthorized

10

disclosure of which reasonably could be expected to cause serious

damage to the national security that the original classification

11

authority is able to identify or describe.

(3) “Confidential” shall be applied to information, the unauthorized

12

disclosure of which reasonably could be expected to cause damage to

the national security that the original classification authority is able to

13

identify or describe.

14 Exec. Order 13526 § 1.2(a). All the information withheld has been classified as SECRET and

15 TOP SECRET under Executive Order 13526 § 1.2(a). Gaviria Decl. ¶¶ 24–47.

16

The Court finds that the government has carried its burden to demonstrate that it properly

17 classified the six opinions under Exemption 1. The Gaviria Declaration describes in detail the

18 categories of information in the six documents and how disclosure of the material could cause

19 damage to national security. Disclosure could reveal critical information about the intelligence

20 community, including its targets, methods, limitations, resources, and sources. Id. ¶¶ 24–47. Ms.

21 Gaviria attests that the withheld documents identify, or tend to reveal the identities of, targets from

22 which communications were collected or targeted under FISA. Id. ¶ 27. Disclosure of these

23 identities would alert these targets to take countermeasures to avoid surveillance and could also

24 provide adversaries with valuable insight into the intelligence community’s methods. Id. ¶¶ 27–

25 28. Ms. Gaviria elaborates that the documents also include information that contain the specific

26 type of communication and data collected by the intelligence community, its methods, and its

27 limitations, disclosure of which would neutralize the intelligence community’s core mission by

28 allowing adversaries to identify and counteract those methods. Id. ¶¶ 30–39. The six documents 13

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1 also contain identities of entities that aid the intelligence community under FISA orders; if

2 disclosed, adversaries could avoid detection and the intelligence community could lose

3 information crucial to the national security and defense of the United States. Id. ¶¶ 40–44.

4 Finally, the withheld information includes docket numbers and dates, disclosure of which would

5 allow adversaries to deduce when collection may or may not be occurring. Id. ¶¶ 45–47. The

6 Gaviria Declaration concludes that the national security of the United States could be exposed to

7 grave damage should the above information be disclosed. Id. ¶¶ 27–47.

8

The Gaviria Declaration provides sufficient detail regarding the withheld information to

9 make the Exemption 1 classification plausible. See Hamdan, 797 F.3d at 770. It does not attempt

10 to categorize distinct information into a single general justification, but gives thorough

11 explanations demonstrating how national security could be compromised if the information is

12 disclosed. Recognizing the Court's “limited institutional expertise on intelligence matters,” see

13 Hamdan, 797 F.3d at 770, the Court accords substantial weight to Ms. Gaviria’s representation

14 that “disclosure of this information could reasonably be expected to cause serious damage, and in

15 some instances, exceptionally grave damage to the national security of the United States.” See

16 Gaviria Decl. ¶ 30. In the area of national security, “it is conceivable that the mere explanation of

17 why information must be withheld can convey valuable information to a foreign intelligence

18 agency.” See Hamdan, 797 F.3d at 775. Therefore, the Court finds that Defendant properly

19 withheld information under Exemption 1.

20

ii. Exemption 3 – Information Protected by Statute

21

Defendant contends that the same six documents withheld in full are properly withheld

22 under Exemption 3. Exemption 3 protects information:

23

specifically exempted from disclosure by statute ... if that statute

(A)(i) requires that the matters be withheld from the public in such a

24

manner as to leave no discretion on the issue; or (ii) establishes

particular criteria for withholding or refer to particular types of

25

matters to be withheld; and (B) if enacted after the date of enactment

of the OPEN FOIA Act of 2009, specifically cites to the paragraph. 26

5 U.S.C. § 552(b)(3): Berman v. C.I.A., 501 F.3d 1136, 1140 (9th Cir. 2007). In determining

27

whether information has been properly withheld under Exemption 3, the Court asks “whether the

28

14

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1 statute identified by the agency is a statute of exemption within the meaning of Exemption 3,” and

2 “whether the withheld records satisfy the criteria of the exemption statute.” Hamdan, 797 F.3d at

3 776.

4

According to Defendant, the government properly withheld the six documents under two

5 statutes: (1) Section 102A(i)(1) of the National Security Agency (“NSA”) Act of 1947, codified as 6 50 U.S.C. § 3024(i)(1), and (2) Section 6 of the NSA Act of 1959, codified as 50 U.S.C. § 3605. 4

7 Dkt. No. 66 at 10–11. Section 102A(i)(1) of the NSA Act of 1947 requires the Director of

8 National Intelligence to “protect intelligence sources and methods from unauthorized disclosure.”

9 50 U.S.C. § 3024(i)(1). Section 6 of the NSA Act of 1959 states that “nothing in this chapter or

10 any other law [ ] shall be construed to require the disclosure of the organization or any function of

11 the National Security Agency, or any information with respect to the activities thereof.” 50 U.S.C.

12 § 3605.

13

The Court is similarly satisfied that the withheld records would disclose intelligence

14 sources, methods, and information about the function and activities of the NSA. The detail

15 provided under Exemption 1 demonstrates that the government also properly withheld the six

16 opinions under Exemption 3. Because each of the categories of information described in

17 Exemption 1 relates to NSA’s intelligence gathering activities, that information falls within 18 Section 102A(i)(1) and Section 6 of the NSA Acts and are properly withheld under Exemption 3.5

19

iii. Segregability

20

FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to

21 any person requesting such record after deletion of the portions which are exempt under this

22 subsection.” 5 U.S.C. § 552(b). “The burden is on the agency to establish that all reasonably

23 segregable portions of a document have been segregated and disclosed.” Pac. Fisheries, 539 F.3d

24

25 4 Plaintiff does not contest that either of these laws is a statute of exemption within the meaning of

26

Exemption 3, but rather alleges that the USA FREEDOM Act controls and mandates disclosure. Dkt. No. 68 at 16. For the reasons already discussed, the Court disagrees.

27

5 The Court need not address the applicability of Exemptions 7(A) and 7(E), because it has found that Defendant properly withheld the six documents in full under Exemptions 1 and 3. Plaintiff’s

28

cursory briefing also suggests that the applicability of these exemptions is not a pivotal issue here. See Dkt. No. 68 at 17 n.8.

15

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1 at 1148. Nevertheless, the agency is also “entitled to a presumption that [it] complied with the

2 obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d

3 1106, 1117 (D.C. Cir. 2007). Similarly, the Court “may rely on an agency’s declaration in making

4 its segregability determination. Agency affidavits that are sufficiently detailed are presumed to be

5 made in good faith and may be taken at face value.” Hamdan, 797 F.3d at 779. The Court “need

6 not conduct a page-by-page review of an agency’s work.” Id.

7

The Court finds that Defendant has met its burden through its tailored explanations of the

8 withheld documents. The Gaviria Declaration states that these six documents were “reviewed by

9 multiple agencies initially as part of either the second or third batch of documents released in this

10 case in September 2017 and January 2018,” demonstrating that Defendant conducted several

11 reviews of the documents in question. Gaviria Decl. ¶ 54. Ms. Gaviria represents that the

12 multiple agencies, in preparing for Defendant’s motion for partial summary judgment, reviewed

13 the documents “line by line,” demonstrating that there was an extensive and thorough review

14 process. Id. ¶ 55. Defendant also provided a description as to why it withheld particular

15 documents and how information could be deduced if certain information was redacted instead of

16 fully withheld. Id. ¶ 56.

17

Plaintiff’s only argument in response is to compare Defendant’s actions here with previous

18 cases that Defendant was involved in. Dkt. No. 68 at 22–23. The Court is not persuaded. For

19 one, the procedural history here indicates that Defendant has gone back to re-evaluate previously

20 withheld FISC opinions and released part of those documents in good faith. Dkt. No. 68 at 3–4.

21 Plaintiff asks the Court to make an inference about Defendant’s current actions based on a

22 different set of circumstances, but Plaintiff’s speculative suggestion is not enough to overcome the

23 presumption of good faith. Hamdan, 797 F.3d at 779. The Court thus finds that Defendant has

24 adequately shown that it “properly withheld and segregated” the documents in question. See

25 Freedom of the Press, 241 F. Supp. 3d at 1004.

26

iv. Vaughn Index

27

In a FOIA action, because only the withholding party will have access to all the facts,

28 district courts have required that the withholding party supply the court and opposing counsel a 16

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United States District Court Northern District of California

1 “Vaughn” index, “identifying each document withheld, the statutory exemption claimed, and a

2 particularized explanation of how disclosure of the particular document would damage the interest

3 protected by the claimed exemptions.” Wiener, 943 F.2d at 977. Defendant submitted a chart

4 listing the six withheld documents with the type of FISC order or opinion, the number of pages,

5 the exemptions, and confirmation that each document was entirely withheld. Dkt. No. 69 at 18.

6 This chart is meant to be read in conjunction with the Gaviria Declaration and the Hardy 7 Declaration.6 See Dkt. No. 66-1. Plaintiff contends that Defendant’s Vaughn index is deficient,

8 even apart from Section 402’s requirements. Dkt. No. 68 at 19–20.

9

The Court finds that the Vaughn index is adequate. The substance of the Declarations was

10 detailed and specific, unlike the index that the Ninth Circuit found deficient in Wiener. Compare

11 943 F.2d at 978–79 (finding “boilerplate” explanations and categorical descriptions, such as

12 “Information of this category is either specific in nature or of a unique character, and thereby

13 could lead to the identification of a source,” inadequate for Vaughn index), with Gaviria Decl. ¶ 41

14 (“Confirming or denying a relationship between a specific Intelligence Community element and a

15 specific entity that is required by FISA order to provide assistance to the Government would

16 reveal to foreign adversaries whether or not that Intelligence Community utilizes particular

17 intelligence sources and methods and [ ] would compromise actual sources and methods.”), and

18 Hardy Decl. ¶ 14 (“I can state that Document 1 contains fairly detailed, non-public descriptions of

19 the specific target of a national security investigation, facilities the target was using, and specific

20 sensitive techniques used by the target … disclosure of [certain statutory] language would tend to

21 disclose both the type of target subject to the surveillance as well as the nature of the

22 surveillance”). Unlike the affidavits in Wiener, the Gaviria and Hardy Declarations do not include

23 boilerplate or categorical descriptions but instead provide sufficient detail for the Court to

24 adequately review the “soundness of the withholding.” See at 943 F.2d at 977.

25

26

27

6 All references to the “Hardy Decl.” or “Hardy Declaration” are to the Declaration of David M. Hardy, Section Chief of the Record/Information Dissemination Section, Information Management

28

Division, attached as Exhibit B to Defendant’s motion for partial summary judgment, filed on July 26, 2018. See Dkt. No. 66-1.

17

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United States District Court Northern District of California

v. In Camera Review 1
The Court may review documents in camera to determine whether exemptions have been 2
properly asserted. 5 U.S.C. § 552(a)(4)(B). In camera inspection, however, should “not be 3
resorted to lightly,” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987), and is “disfavored” where 4
“the government sustains its burden of proof by way of its testimony or affidavits.” Lion Raisins 5
v. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004). “In camera inspection is particularly a 6
last resort in national security situations like this case—a court should not resort to it routinely on 7
the theory that it can’t hurt.” ACLU v. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011). The 8
Court finds that in camera review is unnecessary here as Defendant already provided sufficiently 9
detailed factual information in support of its exemptions in the Gaviria and Hardy Declarations. 10
As discussed, Plaintiff has failed to overcome the good faith presumption to which the 11
declarations are entitled. Hamdan, 797 F.3d at 770. 12

IV. CONCLUSION 13

Accordingly, Defendant’s motion for partial summary judgment is GRANTED, and

14

Plaintiff’s motion for partial summary judgment is DENIED.

15

The parties are ORDERED file a short joint statement by April 5, 2019, informing the

16

Court whether any issues remain to be resolved given today’s order and Defendant’s prior

17

agreement to reprocess and release certain documents by August 2018. See Dkt. No. 62 at 2; Dkt.

18

No. 66 at 4. If no dispute remains to be resolved in this Court, the parties should confirm this in

19

their statement. If the parties believe any issues remain, they shall appear for a case management

20

conference on April 9, 2019 at 2:00 p.m. in Oakland, Courtroom 2, 4th Floor to discuss a plan and

21

schedule for promptly resolving any remaining issues.

22

IT IS SO ORDERED.

23

Dated: 3/26/2019

24

______________________________________

25

HAYWOOD S. GILLIAM, JR.

26

United States District Judge

27

28 18