Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page1 of 9

= 1 Jennifer Lynch (SB N 240701 )
jlynch@eff.org % 2 ELECTRONIC FRONTIE R FOUNDATION . 3 454 Shotwel l Stree t ^
San Francisco, C A 94110 ' ' ^ f . o / 4 Telephone: (415) 436-933 3
Facsimile: (415) 436-9993 " ' " n f j 5

'// /

n C

/) ^

9 p, h r/ /f . 0

.

6
Attorney fo r Plaintiff 7 ELECTRONIC FRONTIE R FOUNDATIO N

8
UNITED STATES DISTRICT COUR T 9
FOR THE NORTHER N DISTRIC T O F CALIFORNI A 10

11 ELECTRONIC FRONTIE R FOUNDATION ,
12

13

Plaintiff,

14

v.

15 DEPARTMENT O F JUSTICE ,

16

Defendant.

COMPLAINT FOR INJUNCTIV E RELIEF FOR VIOLATION O F TH E FREEDOM O F INFORMATION ACT , 5 U.S.C. § 552

17

18

1. Thi s i s an action unde r th e Freedo m o f Informatio n Act (FOIA) , 5 U.S.C. § 552, for

19 injunctive an d othe r appropriat e relief . Plaintif f seek s th e expedite d processin g an d releas e o f

20 records tha t Plaintif f requested fro m Defendant Departmen t o f Justic e an d it s components , Offic e

21 of Lega l Counsel , Offic e of Informatio n Policy , an d Federa l Burea u o f Investigation , concernin g

22 the agency' s interpretatio n an d us e o f Sectio n 21 5 o f th e US A PATRIO T Act . Th e requeste d

23 records concer n a matte r abou t whic h ther e i s a n "urgenc y t o infor m th e publi c abou t a n actua l o r

24 alleged [f]edera l [governmen t activity, " an d th e request s wer e "mad e b y a perso n primaril y

25 engaged i n disseminatin g information. " 5 U.S.C . § 552(a)(6)(E)(i)(I) , (v)(II) ; 2 8 C.F.R .

26 § 16.5(d)(l)(ii) . Expeditio n i s also warrante d becaus e th e request involve s a "matter o f widesprea d

27 and exceptiona l medi a interes t i n whic h ther e exis t possibl e question s abou t th e government' s

28 integrity whic h affec t publi c confidence. " 5 U.S.C . § 552(a)(6)(E)(i)(II) ; 2 8 C.F.R .
±
COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M
OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page2 of 9
1 § 16.5(d)(l)(iv) . Therefore , Plaintiff is statutorily entitled to the expedited treatmen t it seeks .
2 PARTIES
3 2. Plaintif f Electroni c Frontie r Foundatio n (EFF ) i s a not-for-profi t corporatio n
4 established unde r th e law s o f the Commonwealt h o f Massachusetts , wit h office s in Sa n Francisco ,
5 California and Washington , D.C . EF F is a donor-supported membershi p organizatio n tha t works to
6 inform policymakers an d th e genera l publi c abou t civi l libertie s issue s related t o technology an d t o
7 act a s a defende r o f thos e liberties . I n suppor t o f it s mission , EF F use s th e FOI A t o obtai n an d
8 disseminate informatio n concerning the activities of federal agencies .
9 3. Defendan t Departmen t o f Justice (DOJ ) i s a Department o f the Executiv e Branc h o f
10 the Unite d State s Government . DO J i s an "agency " withi n th e meanin g o f 5 U.S.C. § 552(f). Th e
11 Office o f Lega l Counse l (OLC) , Offic e o f Informatio n Polic y (OIP), 1 an d Federa l Burea u o f 12
Investigation (FBI ) are components o f Defendant DOJ . 13
JURISDICTION 14
4. Thi s Cour t ha s bot h subjec t matte r jurisdictio n ove r thi s actio n an d persona l 15
jurisdiction ove r th e partie s pursuan t t o 5 U.S.C . § 552(a)(4)(B ) an d 5 U.S.C . § 552(a)(6)(C)(i) . 16
This Cour t als o has jurisdiction ove r this action pursuant t o 28 U.S.C. § 1331 . 17
VENUE AN D INTRADISTRICT ASSIGNMEN T 18
5. Venu e i s prope r i n thi s distric t unde r 5 U.S.C . § 552(a)(4)(B ) an d 2 8 U.S.C . 19
§ 1391(e) . 20
6. Assignmen t t o th e Sa n Francisc o divisio n i s prope r pursuan t t o Loca l Rul e 3-2(c ) 21
and (d ) becaus e a substantial portio n o f the event s givin g rise to this actio n occurre d i n this distric t 22
and division, where Plaintiff is headquartered . 23
// 24
// 25
26 1 Th e Offic e o f Informatio n Polic y ha s primar y responsibilit y fo r handlin g FOI A request s submitted t o the Offic e of th e Attorney General , Deput y Attorne y General , an d Associat e Attorne y
27 General, a s well a s the Offic e of Legislativ e Affair s and th e Offic e of Legal Policy . B y lette r date d June 29 , 2011 , Offic e o f Lega l Polic y informe d Plaintif f tha t i t ha d n o record s responsiv e t o
28 Plaintiffs request. Thus , Plaintiffs complaint doe s not includ e the Offic e of Legal Policy .
-2:
COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page3 of 9

1

FACTUAL ALLEGATION S

2

Section 215 of the USA PATRIOT Ae t

3

7. Sinc e it s passag e i n 2001 , th e US A PATRIO T Ac t (th e "Patrio t Act") , Pub . L .

4 No. 107-56 , 11 5 Stat . 27 2 (codifie d in various sections) , ha s engendere d controversy . I n particular ,

5 the government' s us e o f on e provision — Sectio n 21 5 — ha s consistentl y sparke d concer n amon g

6 elected officials , civil libertie s advocates, an d citizens .

7

8. Sectio n 21 5 o f the Patriot Act , which amende d th e Foreign Intelligenc e Surveillanc e

8 Act ("FISA") , Pub . L . No . 95-511 , 9 2 Stat . 178 3 (codifie d i n § § 5 0 U.S.C . 180 1 - 1885 ) provide s

9 the FB I wit h th e powe r t o obtai n a cour t orde r fo r "an y tangibl e thing " upo n a showin g tha t th e

10 requested item s ar e "relevan t t o a n authorize d [counterintelligenc e o r counterterrorism ]

11 investigation." 5 0 U.S.C . § 1861(a)(1) , (b)(2)(A) . Sectio n 21 5 — alon g wit h Sectio n 20 6 (th e

12 "roving wiretap " provision ) o f th e Patrio t Ac t an d th e "lon e w o l f ' provisio n o f th e Intelligenc e

13 Reform an d Terroris m Preventio n Ac t o f 200 4 — wa s initiall y schedul e t o sunse t i n 2005 , but ,

14 after brief extensions , wa s subsequentl y reauthorize d fo r four additional years .

15

9. I n 2009 , DO J attorney s publicl y disclose d tha t Sectio n 21 5 order s wer e bein g use d

16 to suppor t a "sensitive collectio n program. " Statemen t o f Tod d Hinnen , Deput y Assistan t Attorne y 17 General, Hous e Judiciar y Committee , "Th e US A PATRIO T Act, " (Septembe r 22 , 2009). 2 Shortl y

18 after thi s disclosure , electe d official s briefe d o n th e government' s interpretatio n o f Sectio n 21 5

19 began t o questio n th e legitimac y o f th e government' s us e o f it s expande d Patrio t Ac t powers .

20 Senator Richar d Durbin , a membe r o f th e Senat e Judiciar y Committee , state d tha t th e

21 government's us e o f "Section 21 5 is unfortunately cloake d i n secrecy . Som e da y tha t cloa k wil l b e

22 lifted, an d futur e generation s wil l as k whethe r ou r action s toda y mee t th e tes t o f a democrati c

23 society: transparency , accountability , an d fidelity to the rule of law and ou r Constitution. " Remark s

24 of Sen . Richar d Durbin , Senat e Judiciar y Committe e "Executiv e Busines s Meeting, " (Octobe r 1 , 25 2009).3

26
27 2 Available at http://www.justice.g0v/0la/testim0ny/ l 11-1/2009-09-22-nsd-hinnen-patriot-act.pd f 3 Available at http://judiciary.senate.gov/resources/webcasts/index.cfm?changedate= 09-28 -
28 09&p=all (beginnin g a t 68:00) .

COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page4 of 9

1 10. Similarly , then-Senato r Rus s Feingold , a membe r o f bot h th e Senat e Judiciar y

2 Committee an d the Senat e Selec t Committee o n Intelligence, stated : there "i s information about th e

3 use o f Sectio n 21 5 order s tha t I believ e Congres s an d th e America n peopl e deserv e t o kno w . . .

4 before we decid e whethe r an d in what for m to extend thes e authorities , Congres s an d th e America n

5 people deserv e t o kno w a t leas t basi c informatio n abou t ho w the y hav e bee n used. " Statemen t o f

6 Sen. Russ Feingold, Senat e Judiciar y Committe e Hearing , "Reauthorizin g th e USA PATRIO T Act :

7 Ensuring Libert y an d Security, " Septembe r 23 , 2009. 4 Despit e th e Senators ' admonitions ,

8 Section 21 5 wa s reauthorized unti l 2011 .

9 11. I n Ma y 2011 , durin g truncate d debat e o n th e reauthorizatio n o f th e thre e expirin g

10 provisions, tw o Senator s o n th e Senat e Selec t Committe e o n Intelligenc e agai n voice d concern s

11 about th e government' s us e o f 215 orders . I n a n interview , Senato r Ro n Wyde n state d tha t h e wa s

12 "extremely intereste d i n reformin g [Sectio n 215] " an d tha t "th e publi c ha s a right t o publi c debat e

13 about" th e government' s interpretatio n an d us e o f Sectio n 215 . Spence r Ackerman , There's a

14 Secret Patriot Act, Senator Says, W I R E D (Ma y 27 , 2011). 5 Then , i n a speec h o n th e Senat e floor ,

15 Senator Wyden declared :

16

I wan t t o delive r a warnin g thi s afternoon : when th e America n peopl e fin d ou t

17

how thei r governmen t ha s secretl y interprete d th e Patrio t Act , the y wil l b e

18

stunned an d the y wil l b e angry . . . . The fac t is that anyon e ca n rea d th e plai n tex t of th e Patrio t Act , an d ye t man y member s o f Congres s hav e n o ide a ho w th e la w

19

is being secretl y interprete d b y the executive branch[. ]

20 Statement o f Sen . Ro n Wyden , O n Patrio t Ac t Reauthorizatio n (Ma y 26 , 2011). 6 Senato r Mar k

21 Udall echoe d simila r concern s abou t th e scope o f Section 215 : "Congres s i s granting power s t o th e

22 Executive Branc h tha t lea d t o abuse , an d frankl y shiel d th e Executiv e Branc h fro m

23 accountability . . . I canno t believ e tha t w e ar e onc e agai n bein g rushe d int o rubber-stam p policie s

24 that threate n th e libert y o f th e America n people. " Statemen t o f Sen . Mar k Udall , O n Patrio t Ac t

25 4 Available at 26 http://judiciary .senate.gov/hearings/testimony .cfm?id= e655f9e2809e5476862f735dal501403&wi t
Jd=e655f9e2809e5476862f735da 1501403-0-1. 27 5Available at http://www.wired.com/dangerroom/2011/05/secret-patriot-act/ .
6 Available at http://wyden.senate.gov/newsroom/press/release/?id= 34eddcdb-2541-42f5-8fld 28 19234030d91e.
^
COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F THE FREEDO M OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page5 of 9
1 Reauthorization (Ma y 26 , 2011). 7
2 12. Senator s Wyde n an d Udall co-sponsore d a n amendment t o the reauthorizatio n o f the
3 Patriot Act . Th e amendmen t woul d hav e require d governmen t official s to "no t secretl y reinterpre t
4 public law s an d statute s i n a manne r tha t i s inconsisten t wit h th e public' s understandin g o f thes e
5 laws, an d [to ] no t describ e th e executio n o f thes e law s i n a wa y tha t misinform s o r mislead s th e
6 public." S.A . 33 9 t o S . 1038 , 112t h Cong . § 3 (2011) . Th e amendmen t woul d hav e als o require d
7 the Attorne y Genera l t o publis h "th e lega l basi s fo r the intelligenc e collectio n activitie s describe d
8 in [a ] Februar y 2 , 201 1 repor t [fro m th e Attorne y Genera l an d Directo r o f Nationa l Intelligenc e
9 regarding intelligenc e collectio n authoritie s schedule d t o expir e unde r Sectio n 22 4 o f th e Patrio t
10 Act]." Id. Again , ove r th e objectio n o f Senator s briefe d on th e government' s interpretatio n an d us e
11 of Section 215 , the three expirin g provisions o f the Patriot Act were extended unti l 2014 .
12 13. O n Septembe r 21 , 2011 , Senator s Wyde n an d Udal l sen t a joint lette r t o Attorne y
13 General Eri c Holde r describin g th e DOJ' s patter n o f "misleadin g statement s pertainin g t o th e
14 government's interpretation " o f Sectio n 215 . Lette r fro m Sens . Wyde n an d Udal l t o Attorne y
15 General Eri c Holde r (Sept . 21 , 2011). 8 Th e Senator s expresse d particula r concer n wit h
16 representations mad e b y th e DO J analogizin g th e us e o f Sectio n 21 5 t o gran d jur y subpoenas , a s
17 well a s wit h DO J statement s denyin g tha t Sectio n 21 5 ha d no t bee n subjec t t o a secre t lega l
18 interpretation b y th e DOJ . Id. Th e Senator s close d b y urgin g DO J t o "avoi d a negativ e publi c
19 reaction an d erosio n o f confidenc e in US intelligenc e agencies " by "initiating ] a n informed publi c
20 debate abou t these authoritie s today. " Id.
21 Plaintiffs FOIA Request s an d Requests for Expedited Processin g
22 14. I n letter s date d Jun e 2 , 201 1 an d sen t b y emai l t o th e OLC , OIP , an d FBI , Plaintif f
23 requested unde r th e FOI A al l agenc y record s (including , bu t no t limite d to , electroni c records )
24 created fro m January 1 , 2004 t o the present discussing , concerning , o r reflectin g the DO J o r any o f
25 its component's interpretatio n o r use of Section 215 orders, including :
26
27 7 Available at http://markudall.senate.gov/?p= press_release&id= 1090 .
28 8 Available at http://wyden.senate.gov/download/?id= a3670ed3-9f65-4740-b72e-061c7de83f75 .
-Jz
COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page6 of 9

1

(1) Al l reports , memoranda , guidance , presentations , lega l briefs , emails ,

or any other record describing the types of "tangible things" which th e

2

DOJ o r an y o f it s components ha s sough t o r ha s th e authorit y t o see k

3

through Sectio n 21 5 orders , whethe r "pure " o r "combination " order s

(i.e., a 21 5 orde r mad e i n conjunctio n wit h a pe n register/tra p an d

4

trace order) ;

5

(2) Al l reports , memoranda , guidance , presentations , lega l briefs , emails ,

6

or an y othe r recor d relate d t o th e us e o f Sectio n 21 5 order s t o furthe r any "sensitive collection program," as referenced above ;

7 (3) Al l reports , memoranda , guidance , presentations , lega l briefs , emails ,

8

or an y othe r recor d relatin g t o th e scop e o f th e FBI' s authorit y unde r

Section 21 5 o r th e lega l basi s fo r "sensitiv e collectio n programs "

9

supported b y Sectio n 21 5 orders , includin g an y briefing s provided t o

the Senat e Selec t Committe e o n Intelligenc e o r th e Senat e Judiciar y

10

Committee, includin g the February 2 , 2011 repor t described above ;

11 (4) Al l reports , memoranda , guidance , presentations , lega l briefs , emails ,

12

or an y othe r recor d relate d t o modification s b y th e Foreig n

Intelligence Surveillanc e Cour t t o application s fo r Sectio n 21 5 order s

13

submitted b y the FBI;

14

(5) Al l reports , memoranda , guidance , presentations , lega l briefs , emails ,

15

or an y othe r recor d relate d t o th e Foreig n Intelligenc e Surveillanc e

Court's refusa l t o gran t an y application s fo r Sectio n 21 5 order s

16

submitted by the FBI;

17

(6) Al l reports , memoranda , guidance , presentations , lega l briefs , emails ,

18

or any other record related to the FBI' s withdrawal o f any application s for Sectio n 21 5 order s fro m th e Foreig n Intelligenc e Surveillanc e

19

Court;

20

(7) Al l reports, memoranda, guidance, presentation , lega l briefs, emails o r

any othe r recor d relate d t o th e numbe r o f U.S . person s identifie d a s

21

subjects i n Sectio n 21 5 order s an d th e numbe r o f non-U.S . person s

22

identified as subjects in Section 21 5 orders ;

23

(8) Copie s o f an y invoices , receipts , bills , o r an y othe r simila r documen t

sent t o th e FB I b y an y busines s o r organizatio n i n orde r t o b e

24

reimbursed fo r the cost of compliance wit h a Section 215 order .

25

15. I n it s Jun e 2 letters , Plaintif f als o formall y requeste d tha t th e processin g o f thes e

26 requests b e expedite d becaus e the y pertai n t o informatio n abou t whic h ther e i s "[a] n urgenc y t o

27 inform th e publi c abou t a n actua l o r allege d federa l governmen t activity, " an d th e request s wer e

28 "made b y a person primaril y engage d i n disseminating information. " 5 U.S.C. § 552(a)(6)(E)(i)(I) ,

COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M OF INFORMATIO N A C T , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page7 of 9
1
(v)(II); 2 8 C.F.R . § 16.5(d)(l)(ii) . Plaintif f als o requeste d expedite d processin g becaus e th e 2
requests involv e a "matte r o f widesprea d an d exceptiona l medi a interes t i n whic h ther e exis t 3
possible question s abou t th e government' s integrit y whic h affec t publi c confidence. " 5 U.S.C . 4
§ 552(a)(6)(E)(i)(II) ; 2 8 C.F.R. § 16.5(d)(l)(iv) . 5
16. O n informatio n an d belief , OLC , OIP , an d FB I receive d Plaintiff s reques t letters , 6
described i n paragraphs 1 4 & 15 , on June 3, 2011. 7
17. B y lette r date d Jun e 15 , 2011 , OL C acknowledge d receip t o f Plaintiff s FOI A 8
request an d grante d Plaintiff s request for expedited processing . 9
18. B y lette r date d Jun e 13 , 2011, OI P acknowledged receip t o f Plaintiff s FOIA reques t 10
and grante d Plaintiff s request for expedited processing .
11
19. B y lette r date d Jun e 22 , 2011 , FB I acknowledge d receip t o f Plaintiff s FOI A 12
request. B y lette r date d Jul y 6 , 2011 , FB I grante d Plaintiff s request fo r expedite d processing . B y 13
letter date d Jul y 6 , 201 1 an d sen t unde r separat e cover , FB I denie d Plaintiff s request fo r a publi c 14
interest fe e waive r unde r 5 U.S.C . § 552(a)(4)(A)(iii ) an d 2 8 C.F.R . §16. 1 l(k)(l). B y lette r date d 15
August 30 , 2011 and sen t via facsimile, Plaintiff appealed FBI' s fe e waiver denial . 16
20. Despit e eac h component' s gran t o f expedite d processing , afte r nearl y five months , 17
none o f the component s ha s yet processed an d release d record s responsiv e t o EFF' s FOI A request . 18
Not onl y ha s Defendan t faile d t o expedit e th e processin g o f Plaintiff s requests , i t ha s als o 19
exceeded th e generall y applicabl e twenty-da y deadlin e fo r the processing o f any FOI A reques t 20
21. Plaintif f has exhauste d th e applicabl e administrativ e remedie s wit h respec t t o al l o f
21
its FOIA request s referenced herein . 22
22. Defendan t has wrongfully withheld th e requested record s from Plaintiff. 23
CAUSES O F ACTIO N 24
Violation o f the Freedom o f Information Act for Failure to Expedite Processin g 25
23. Plaintif f repeats and realleges paragraphs 1-22 . 26
24. Defendan t ha s violated th e FOI A b y failin g to expedit e th e processing o f Plaintiff s 27
FOIA requests . 28
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COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page8 of 9
1 25. Plaintif f ha s exhauste d th e applicabl e administrativ e remedie s wit h respec t t o
2 Defendant's failure to expedite the processing o f Plaintiffs requests.
3 26. Plaintif f i s entitle d t o injunctiv e relie f wit h respec t t o th e expedite d processin g o f
4 the requested agenc y records .
5 Violation o f the Freedom o f Information Act for Wrongful Withholding o f Agency Record s
6 27. Plaintif f repeats an d realleges paragraphs 1 -22.
7 28. Defendan t ha s wrongfull y withheld agenc y record s requeste d b y Plaintif f by failin g
8 to comply wit h the statutor y tim e limi t fo r the processing o f FOIA requests .
9 29. Plaintif f ha s exhauste d th e applicabl e administrativ e remedie s wit h respec t t o
10 Defendant's wrongful withholding o f the requested records .
11 30. Plaintif f i s entitle d t o injunctiv e relie f wit h respec t t o th e releas e an d disclosur e o f
12 the requested documents .
13 Violation o f the Freedom o f Information Act for Wrongful Denial o f Plaintiffs Fee Waive r
14 31. Plaintif f repeats and reallege s paragraphs 1 -22.
15 32. Defendan t has wrongfully denied Plaintiffs request for a public interes t fee waiver.
16 33. Plaintif f ha s exhauste d th e applicabl e administrativ e remedie s wit h respec t t o
17 Defendant's denial of Plaintiff s public interest fee waiver.
18 34. Plaintif f is entitled t o a waiver o f al l fee s associated wit h th e processin g an d releas e
19 of the requested records .
20 REQUESTED RELIE F
21 WHEREFORE, Plaintif f prays that this Court:
22 1. orde r Defendan t an d it s components t o process immediatel y th e requested record s i n
23 their entirety ;
24 2. orde r Defendan t and it s components, upo n completio n o f such expedited processing ,
25 to disclos e th e requeste d record s i n thei r entiret y an d mak e copie s availabl e t o
26 Plaintiff;
27 3. orde r Defendan t and it s components t o waive al l fee s associated wit h th e processin g
28
-JL
COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

Case4:11-cv-05221-YGR Document1 Filed10/26/11 Page9 of 9

1 and release of the requested records ;
2 4. provid e for expeditious proceedings i n this action;
3 5. awar d Plaintif f its costs and reasonable attorney s fees incurred i n this action; an d
4 6. gran t suc h othe r relief as the Court ma y dee m just an d proper .
5 DATED: Octobe r 26 , 201 1
6

7

By:

Jtenii^JLyri^h, Mq .

8

E C E e T R M C FRONTIE R FOUNDATIO N

454 Shotwell Stree t

9

San Francisco, C A 9411 0

Telephone: (415 ) 436-933 3

10

Facsimile: (415) 436-999 3

11

Attorneys for Plaintiff

ELECTRONIC FRONTIE R FOUNDATIO N 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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COMPLAINT FO R INJUNCTIV E RELIE F FO R VIOLATIO N O F TH E FREEDO M OF INFORMATIO N ACT , 5 U . S . C . § 5 5 2

 
 Case4:11-cv-05221-YGR Document9 Filed11/03/11 Page1 of 11

1 Jennifer Lynch (SBN 240701) jlynch@eff.org
2 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street
3 San Francisco, CA 94110 Telephone: (415) 436-9333
4 Facsimile: (415) 436-9993

5 Attorney for Plaintiff
6 ELECTRONIC FRONTIER FOUNDATION

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 ELECTRONIC FRONTIER FOUNDATION, ) CASE NO.: 11-cv-5221 DMR

)

12

Plaintiff, ) FIRST AMENDED COMPLAINT FOR

13

v.

) ) )

INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION

14 DEPARTMENT OF JUSTICE,

) ACT, 5 U.S.C. § 552 )

15

)

Defendant. )

16

)

17 1. This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for
18 injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of
19 records that Plaintiff requested from Defendant Department of Justice and its components, Office
20 of Legal Counsel, Office of Information Policy, National Security Division, and Federal Bureau of
21 Investigation, concerning the agency’s interpretation and use of Section 215 of the USA PATRIOT
22 Act. The requested records concern a matter about which there is an “urgency to inform the public
23 about an actual or alleged [f]ederal [g]overnment activity,” and the requests were “made by a
24 person primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(i)(I), (v)(II);
25 28 C.F.R. § 16.5(d)(1)(ii). Expedition is also warranted because the request involves a “matter of
26 widespread and exceptional media interest in which there exist possible questions about the
27 government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(i)(II); 28 C.F.R.
28

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1 § 16.5(d)(1)(iv). Therefore, Plaintiff is statutorily entitled to the expedited treatment it seeks.
2 PARTIES
3 2. Plaintiff Electronic Frontier Foundation (EFF) is a not-for-profit corporation
4 established under the laws of the Commonwealth of Massachusetts, with offices in San Francisco,
5 California and Washington, D.C. EFF is a donor-supported membership organization that works to
6 inform policymakers and the general public about civil liberties issues related to technology and to
7 act as a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and
8 disseminate information concerning the activities of federal agencies.
9 3. Defendant Department of Justice (DOJ) is a Department of the Executive Branch of
10 the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). The
11 Office of Legal Counsel (OLC), Office of Information Policy (OIP),1 National Security Division 12
(NSD), and Federal Bureau of Investigation (FBI) are components of Defendant DOJ. 13
JURISDICTION 14
4. This Court has both subject matter jurisdiction over this action and personal 15
jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. § 552(a)(6)(C)(i). 16
This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 17
VENUE AND INTRADISTRICT ASSIGNMENT 18
5. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. 19
§ 1391(e). 20
6. Assignment to the San Francisco division is proper pursuant to Local Rule 3-2(c) 21
and (d) because a substantial portion of the events giving rise to this action occurred in this district 22
and division, where Plaintiff is headquartered. 23

24

25
26 1 The Office of Information Policy has primary responsibility for handling FOIA requests submitted to the Office of the Attorney General, Deputy Attorney General, and Associate Attorney
27 General, as well as the Office of Legislative Affairs and the Office of Legal Policy. By letter dated June 29, 2011, Office of Legal Policy informed Plaintiff that it had no records responsive to
28 Plaintiff’s request. Thus, Plaintiff’s complaint does not include the Office of Legal Policy.

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1

FACTUAL ALLEGATIONS

2

Section 215 of the USA PATRIOT Act

3

7. Since its passage in 2001, the USA PATRIOT Act (the “Patriot Act”), Pub. L.

4 No. 107-56, 115 Stat. 272 (codified in various sections), has engendered controversy. In particular,

5 the government’s use of one provision — Section 215 — has consistently sparked concern among

6 elected officials, civil liberties advocates, and citizens.

7

8. Section 215 of the Patriot Act, which amended the Foreign Intelligence Surveillance

8 Act (“FISA”), Pub. L. No. 95-511, 92 Stat. 1783 (codified in §§ 50 U.S.C. 1801 - 1885) provides

9 the FBI with the power to obtain a court order for “any tangible thing” upon certification that the

10 requested items are “relevant to an authorized [counterintelligence or counterterrorism]

11 investigation.” 50 U.S.C. § 1861(a)(1), (b)(2)(A). Section 215 — along with Section 206 (the

12 “roving wiretap” provision) of the Patriot Act and the “lone wolf” provision of the Intelligence

13 Reform and Terrorism Prevention Act of 2004 — was initially schedule to sunset in 2005, but,

14 after brief extensions, was subsequently reauthorized for four additional years.

15

9. In 2009, DOJ attorneys publicly disclosed that Section 215 orders were being used

16 to support a “sensitive collection program.” Statement of Todd Hinnen, Deputy Assistant Attorney 17 General, House Judiciary Committee, “The USA PATRIOT Act,” (September 22, 2009).2 Shortly

18 after this disclosure, elected officials briefed on the government’s interpretation of Section 215

19 began to question the legitimacy of the government’s use of its expanded Patriot Act powers.

20 Senator Richard Durbin, a member of the Senate Judiciary Committee, stated that the

21 government’s use of “Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be

22 lifted, and future generations will ask whether our actions today meet the test of a democratic

23 society: transparency, accountability, and fidelity to the rule of law and our Constitution.” Remarks

24 of Sen. Richard Durbin, Senate Judiciary Committee “Executive Business Meeting,” (October 1, 25 2009). 3

26
27 2 Available at http://www.justice.gov/ola/testimony/111-1/2009-09-22-nsd-hinnen-patriot-act.pdf 3 Available at http://judiciary.senate.gov/resources/webcasts/index.cfm?changedate=09-28-
28 09&p=all (beginning at 68:00).

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1 10. Similarly, then-Senator Russ Feingold, a member of both the Senate Judiciary

2 Committee and the Senate Select Committee on Intelligence, stated: there “is information about the

3 use of Section 215 orders that I believe Congress and the American people deserve to know . . .

4 before we decide whether and in what form to extend these authorities, Congress and the American

5 people deserve to know at least basic information about how they have been used.” Statement of

6 Sen. Russ Feingold, Senate Judiciary Committee Hearing, “Reauthorizing the USA PATRIOT Act:

7 Ensuring Liberty and Security,” September 23, 2009.4 Despite the Senators’ admonitions,

8 Section 215 was reauthorized until 2011.

9 11. In May 2011, during truncated debate on the reauthorization of the three expiring

10 provisions, two Senators on the Senate Select Committee on Intelligence again voiced concerns

11 about the government’s use of 215 orders. In an interview, Senator Ron Wyden stated that he was

12 “extremely interested in reforming [Section 215]” and that “the public has a right to public debate

13 about” the government’s interpretation and use of Section 215. Spencer Ackerman, There’s a

14 Secret Patriot Act, Senator Says, WIRED (May 27, 2011).5 Then, in a speech on the Senate floor,

15 Senator Wyden declared:

16

I want to deliver a warning this afternoon: when the American people find out

17

how their government has secretly interpreted the Patriot Act, they will be

stunned and they will be angry. . . . The fact is that anyone can read the plain text

18

of the Patriot Act, and yet many members of Congress have no idea how the law

is being secretly interpreted by the executive branch[.] 19

20 Statement of Sen. Ron Wyden, On Patriot Act Reauthorization (May 26, 2011).6 Senator Mark

21 Udall echoed similar concerns about the scope of Section 215: “Congress is granting powers to the

22 Executive Branch that lead to abuse, and frankly shield the Executive Branch from

23 accountability . . . I cannot believe that we are once again being rushed into rubber-stamp policies

24 that threaten the liberty of the American people.” Statement of Sen. Mark Udall, On Patriot Act

25 4 Available at
26 http://judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da1501403&wit _id=e655f9e2809e5476862f735da1501403-0-1.
27 5Available at http://www.wired.com/dangerroom/2011/05/secret-patriot-act/. 6 Available at http://wyden.senate.gov/newsroom/press/release/?id=34eddcdb-2541-42f5-8f1d-
28 19234030d91e.

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1 Reauthorization (May 26, 2011).7 2
12. Senators Wyden and Udall co-sponsored an amendment to the reauthorization of the 3
Patriot Act. The amendment would have required government officials to “not secretly reinterpret 4
public laws and statutes in a manner that is inconsistent with the public’s understanding of these 5
laws, and [to] not describe the execution of these laws in a way that misinforms or misleads the 6
public.” S.A. 339 to S. 1038, 112th Cong. § 3 (2011). The amendment would have also required 7
the Attorney General to publish “the legal basis for the intelligence collection activities described 8
in [a] February 2, 2011 report [from the Attorney General and Director of National Intelligence 9
regarding intelligence collection authorities scheduled to expire under Section 224 of the Patriot 10
Act].” Id. Again, over the objection of Senators briefed on the government’s interpretation and 11
use of Section 215, the three expiring provisions of the Patriot Act were extended until 2014. 12
13. On September 21, 2011, Senators Wyden and Udall sent a joint letter to Attorney 13
General Eric Holder describing the DOJ’s pattern of “misleading statements pertaining to the 14
government’s interpretation” of Section 215. Letter from Sens. Wyden and Udall to Attorney 15 General Eric Holder (Sept. 21, 2011).8 The Senators expressed particular concern with 16
representations made by the DOJ analogizing the use of Section 215 to grand jury subpoenas, as 17
well as with DOJ statements denying that Section 215 had not been subject to a secret legal 18
interpretation by the DOJ. Id. The Senators closed by urging DOJ to “avoid a negative public 19
reaction and erosion of confidence in US intelligence agencies” by “initiat[ing] an informed public 20
debate about these authorities today.” Id. 21
Plaintiff’s FOIA Requests and Requests for Expedited Processing 22
14. In letters dated June 2, 2011 and sent by email to the OLC, OIP, NSD, and FBI, 23
Plaintiff requested under the FOIA all agency records (including, but not limited to, electronic 24
records) created from January 1, 2004 to the present discussing, concerning, or reflecting the DOJ 25
or any of its component’s interpretation or use of Section 215, including: 26
27 7 Available at http://markudall.senate.gov/?p=press_release&id=1090.
28 8 Available at http://wyden.senate.gov/download/?id=a3670ed3-9f65-4740-b72e-061c7de83f75.

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1

(1) All reports, memoranda, guidance, presentations, legal briefs, emails,

or any other record describing the types of “tangible things” which the

2

DOJ or any of its components has sought or has the authority to seek

3

through Section 215 orders, whether “pure” or “combination” orders

(i.e., a 215 order made in conjunction with a pen register/trap and

4

trace order);

5

(2) All reports, memoranda, guidance, presentations, legal briefs, emails,

or any other record related to the use of Section 215 orders to further

6

any “sensitive collection program;”

7 (3) All reports, memoranda, guidance, presentations, legal briefs, emails,

8

or any other record relating to the scope of the FBI’s authority under

Section 215 or the legal basis for “sensitive collection programs”

9

supported by Section 215 orders, including any briefings provided to

10

the Senate Select Committee on Intelligence or the Senate Judiciary Committee, including the February 2, 2011 report;

11 (4) All reports, memoranda, guidance, presentations, legal briefs, emails,

12

or any other record related to modifications by the Foreign

Intelligence Surveillance Court to applications for Section 215 orders

13

submitted by the FBI;

14

(5) All reports, memoranda, guidance, presentations, legal briefs, emails,

15

or any other record related to the Foreign Intelligence Surveillance

Court’s refusal to grant any applications for Section 215 orders

16

submitted by the FBI;

17

(6) All reports, memoranda, guidance, presentations, legal briefs, emails,

18

or any other record related to the FBI’s withdrawal of any applications for Section 215 orders from the Foreign Intelligence Surveillance

19

Court;

20

(7) All reports, memoranda, guidance, presentation, legal briefs, emails or

any other record related to the number of U.S. persons identified as

21

subjects in Section 215 orders and the number of non-U.S. persons

22

identified as subjects in Section 215 orders;

23

(8) Copies of any invoices, receipts, bills, or any other similar document

sent to the FBI by any business or organization in order to be

24

reimbursed for the cost of compliance with a Section 215 order.

25

15. In its June 2 letters, Plaintiff also formally requested that the processing of these

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

27 inform the public about an actual or alleged federal government activity,” and the requests were

28 “made by a person primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(i)(I),

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1 (v)(II); 28 C.F.R. § 16.5(d)(1)(ii). Plaintiff also requested expedited processing because the
2 requests involve a “matter of widespread and exceptional media interest in which there exist
3 possible questions about the government’s integrity which affect public confidence.” 5 U.S.C.
4 § 552(a)(6)(E)(i)(II); 28 C.F.R. § 16.5(d)(1)(iv). Plaintiff further requested a waiver of all fees
5 associated with the processing of the request because EFF is a representative of the news media,
6 pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 28 C.F.R. §16.22(b)(6), (d)(1), and because the
7 request was in the public interest, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R.
8 § 16.11(k)(1).
9 OLC’s Response to Plaintiff’s FOIA Request
10 16. By letter dated June 15, 2011, OLC acknowledged receiving Plaintiff’s FOIA
11 request, described in paragraphs 14 & 15, on June 3, 2011.
12 17. In its June 15 letter, OLC granted Plaintiff’s request for expedited processing. OLC
13 did not make a determination on Plaintiff’s fee waiver request.
14 18. To date, OIP has not produced any records responsive to Plaintiff’s FOIA request.
15 OIP’s Response to Plaintiff’s FOIA Request
16 19. By letter dated June 13, 2011, OIP acknowledged receiving Plaintiff’s FOIA
17 request, described in paragraphs 14 & 15, on June 3, 2011.
18 20. In its June 13 letter, OIP granted Plaintiff’s request for expedited processing. OIP
19 did not make a determination on Plaintiff’s fee waiver request.
20 21. By letter dated June 29, 2011, OIP informed Plaintiff that no records responsive to
21 Plaintiff’s FOIA request were located within the Office of Legal Policy. OIP informed Plaintiff that
22 the Offices of the Attorney General, Deputy Attorney General, Associate Attorney General, and
23 Legislative Affairs were continuing their search.
24 22. To date, OIP has not produced any records responsive to Plaintiff’s FOIA request.
25 NSD’s Response to Plaintiff’s FOIA Request
26 23. By letter dated June 6, 2011, NSD acknowledged receiving Plaintiff’s FOIA
27 request, described in paragraphs 14 & 15, on June 6, 2011.
28

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1 24. In its June 6 letter, NSD granted Plaintiff’s fee waiver request. NSD did not make a
2 determination on Plaintiff’s request for expedited processing.
3 25. By letter dated August 22, 2011, NSD released three records, constituting 14 pages
4 of public Congressional testimony delivered by DOJ officials. NSD withheld in full 8 pages of
5 emails, and an unknown number of other responsive records.
6 26. By letter dated October 3, 2011 and sent via facsimile on October 4, 2011, Plaintiff
7 appealed NSD’s withholding of responsive records.
8 27. By letter dated October 13, 2011, OIP acknowledged receiving Plaintiff’s appeal,
9 described in paragraph 26, on October 4, 2011.
10 FBI’s Response to Plaintiff’s FOIA Request
11 28. On information and belief, FBI received Plaintiff’s FOIA request, described in
12 paragraphs 14 & 15, on June 2, 2011.
13 29. By letter dated June 22, 2011, FBI acknowledged receipt of Plaintiff’s FOIA
14 request.
15 30. By letter dated July 6, 2011, FBI granted Plaintiff’s request for expedited
16 processing.
17 31. By letter dated July 6, 2011 and sent under separate cover, FBI denied Plaintiff’s
18 request for a public interest fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. §16.11(k).
19 32. By letter dated August 30, 2011 and sent via facsimile, Plaintiff appealed FBI’s fee
20 waiver denial.
21 33. By letter dated September 8, 2011, OIP acknowledged receiving Plaintiff’s appeal,
22 described in paragraph 32, on August 31, 2011.
23 34. By letter dated October 24, 2011, OIP advised that it was “administratively closing”
24 Plaintiff’s appeal on the grounds that the FBI’s “determination on [Plaintiff’s] fee waiver request
25 was premature.”
26 35. To date, FBI has not produced any records responsive to Plaintiff’s FOIA request.
27
28

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1 Defendant’s Failure to Provide Expedited Processing and Release of Requested Records
2 36. Despite OLC, OIP, and FBI’s grant of expedited processing, after nearly five
3 months, these three components have yet to process and release any records responsive to EFF’s
4 FOIA request. Not only have these components failed to expedite the processing of Plaintiff’s
5 requests, they have also exceeded the generally applicable twenty-day deadline for the processing
6 of any FOIA request.
7 37. While NSD has produced 14 pages of already-public responsive records in its
8 possession, it has withheld an unknown number of responsive records in full. NSD has failed to
9 timely respond to Plaintiff’s administrative appeal within the twenty-day determination deadline.
10 38. Plaintiff has exhausted the applicable administrative remedies with respect to all of
11 its FOIA requests referenced herein.
12 39. Defendant has wrongfully withheld the requested records from Plaintiff.
13 CAUSES OF ACTION
14 Violation of the Freedom of Information Act for Failure to Expedite Processing
15 40. Plaintiff repeats and realleges paragraphs 1-39.
16 41. Defendant has violated the FOIA by failing to expedite the processing of Plaintiff’s
17 FOIA requests.
18 42. Plaintiff has exhausted the applicable administrative remedies with respect to
19 Defendant’s failure to expedite the processing of Plaintiff’s requests.
20 43. Plaintiff is entitled to injunctive relief with respect to the expedited processing of
21 the requested agency records.
22 Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records
23 44. Plaintiff repeats and realleges paragraphs 1-39.
24 45. Defendant has wrongfully withheld agency records requested by Plaintiff by failing
25 to comply with the statutory time limit for the processing of FOIA requests.
26 46. Plaintiff has exhausted the applicable administrative remedies with respect to
27 Defendant’s wrongful withholding of the requested records.
28

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

2 the requested documents.

3 Violation of the Freedom of Information Act for Failure to Grant Plaintiff’s Fee Waiver

4 48. Plaintiff repeats and realleges paragraphs 1-39.

5 49. Defendant has wrongfully failed to grant Plaintiff’s request for a public interest fee

6 waiver.

7 50. Plaintiff has exhausted the applicable administrative remedies with respect to

8 Defendant’s failure to grant Plaintiff’s public interest fee waiver.

9 51. Plaintiff is entitled to a waiver of all fees associated with the processing and release

10 of the requested records.

11 REQUESTED RELIEF
12 WHEREFORE, Plaintiff prays that this Court:

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

14 their entirety;

15 2. order Defendant and its components, upon completion of such expedited processing,

16 to disclose the requested records in their entirety and make copies available to

17 Plaintiff;

18 3. order Defendant and its components to waive all fees associated with the processing

19 and release of the requested records;

20 4. provide for expeditious proceedings in this action;

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

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

23

DATED: November 3, 2011 24

By: /s Jennifer Lynch

25

Jennifer Lynch, Esq.

ELECTRONIC FRONTIER FOUNDATION

26

454 Shotwell Street

San Francisco, CA 94110

27

Attorneys for Plaintiff

ELECTRONIC FRONTIER FOUNDATION 28

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 Case4:11-cv-05221-YGR Document22 Filed02/16/12 Page1 of 5

1 Jennifer Lynch (SBN 240701) jlynch@eff.org
2 Mark Rumold (SBN 279060) mark@eff.org
3 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street
4 San Francisco, CA 94110 Telephone: (415) 436-9333
5 Facsimile: (415) 436-9993

6 Attorneys for Plaintiff
7 ELECTRONIC FRONTIER FOUNDATION

8

9

UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12 ELECTRONIC FRONTIER FOUNDATION, ) Case No. 4:11-cv-05221-YGR

)

13

14

v.

Plaintiff,

) STIPULATION AND [PROPOSED]

) ) )

ORDER REGARDING PROCESSING OF FOIA REQUESTS

15 DEPARTMENT OF JUSTICE, 16

) ) )

The Honorable Yvonne Gonzalez Rogers Oakland Courtroom

Defendant. )

17

)

18

19

20

21

22

23

24

25

26

27

28
STIPULATION AND [PROPOSED] ORDER REGARDING FOIA REQUEST
CASE NO. 4:11-CV-05221-YGR

Case4:11-cv-05221-YGR Document22 Filed02/16/12 Page2 of 5
1 Plaintiff Electronic Frontier Foundation and Defendant Department of Justice and its
2 components Office of Information Policy, Office of Legal Counsel, National Security Division,
3 and Federal Bureau of Investigation hereby stipulate to the following regarding Plaintiff’s requests
4 made pursuant to the Freedom of Information Act (“FOIA”), dated June 2, 2011 (the “FOIA
5 Requests”), and the subject of the above-captioned action:
6 1. The processing and production of records responsive to Plaintiff’s FOIA Requests
7 will occur in three phases. On or before the date of completion for each phase, Defendant will
8 process and produce records according to the schedule set forth below, or notify Plaintiff of the
9 complete or partial withholding of responsive records, if any, pursuant to any applicable FOIA
10 exemptions.
11 2. The first two stages concern only the following categories of documents:
12 a. Legal opinions or memoranda concerning or interpreting Section 215 of the
13 USA PATRIOT Act (“Section 215”);
14 b. Guidelines for government personnel regarding the use of Section 215;
15 c. Reports provided to Congress by the Federal Bureau of Investigation or
16 Department of Justice concerning or memorializing the Executive Branch’s interpretation or use of
17 Section 215.
18 d. Reports, opinions, or memoranda of the Foreign Intelligence Surveillance
19 Court (“FISC”) concerning or interpreting Section 215; and
20 e. Legal opinions or memoranda concerning or interpreting rulings, opinions,
21 or memoranda of the FISC interpreting Section 215.
22 3. On or before March 15, 2012, Defendant will process and produce to Plaintiff those
23 responsive records listed in Paragraph 2 and created from March 9, 2006 to the date Defendant
24 began its search for responsive records.
25 4. On or before May 15, 2012, Defendant will endeavor to process and produce to
26 Plaintiff those responsive records listed in Paragraph 2 and created from January 1, 2004 to March
27 8, 2006.
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1 5. On or before July 1, 2012, Defendant will endeavor to process and produce to
2 Plaintiff the following categories of records:
3 a. All email responsive to Plaintiff’s FOIA Requests
4 b. All copies of invoices, receipts, bills, or any other similar document sent to
5 the Department of Justice or any of its components by any business or organization in order to be
6 reimbursed for the cost of compliance with a Section 215 order from January 1, 2004 to June 2,
7 2011
8 6. The following categories of documents are excluded from the FOIA Requests:
9 a. Drafts of documents listed in Paragraph 2 for which a final version is either
10 identified and withheld, or partially released, pursuant to a valid FOIA exemption, or released in
11 full;
12 b. Emails concerning the drafts of documents described in Paragraph 6(a) for
13 which a final version is either identified and withheld, or partially released, pursuant to a valid
14 FOIA exemption, or released in full;
15 c. Records that are purely logistical, such as emails between officials
16 attempting to schedule a meeting.
17 7. For email responsive to Plaintiff’s FOIA Requests, only one version of every
18 responsive email need be processed and released or withheld in full pursuant to a valid FOIA
19 exemption.
20 8. Acquisition applications and supporting documentation submitted to the Foreign
21 Intelligence Surveillance Court are excluded from the FOIA Request.
22 9. With respect to the Office of Legal Counsel (“OLC”), OLC need only process and
23 release, or withhold pursuant to a valid FOIA exemption, OLC legal opinions and memoranda
24 concerning or interpreting Section 215.
25 10. Within 21 days of the completion of the productions and/or notifications set forth in
26 Paragraphs 1 – 5, above, the parties will meet and confer regarding the documents withheld in
27 whole or in part by Defendant, and Plaintiff will notify Defendant whether it wishes to object to
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1 any of the withholdings. In the event Plaintiff objects, the parties will discuss a scheduling order

2 for whether, how, or when Defendant will provide an index or other description of partially or

3 completely withheld documents pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

4 11. Within 30 days of the completion of productions and/or notifications set forth in

5 Paragraphs 1 – 5, above, the parties will submit a joint statement to the Court describing the status

6 of the case.

7 12. Defendant enters into this stipulation based on the information available to it at this

8 time. In the event unforeseen circumstances arise, such as an unexpectedly high volume of

9 responsive material or problems processing Plaintiff’s FOIA Requests, Defendant reserves the right

10 to seek an extension of time after meeting and conferring with Plaintiff through counsel.

11 DATED: February 10, 2012
12

Respectfully submitted,

By /s/ Mark Rumold 13

Mark Rumold

14

Jennifer Lynch

ELECTRONIC FRONTIER FOUNDATION

15

454 Shotwell Street

San Francisco, CA 94110 16

17 18
DATED: February 10, 2012 19 20 21 22 23 24 25 26

Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION

TONY WEST Assistant Attorney General MELINDA HAAG United States Attorney

By:

/s/ Steven Y. Bressler (by permission)

STEVEN Y. BRESSLER

Senior Counsel

U.S. Department of Justice

Civil Division, Federal Programs Branch

P.O. Box 883

Washington, D.C. 20044

Telephone: (202) 305-0167

Facsimile: (202) 616-8470

Steven.Bressler@usdoj.gov

27

Attorneys for Defendant

U.S. DEPARTMENT OF JUSTICE

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STIPULATION AND [PROPOSED] ORDER REGARDING FOIA

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1

GENERAL ORDER NO. 45(X) CERTIFICATION

2 I attest that I have obtained the concurrence of Steven Y. Bressler, counsel for Defendant,

3 in the filing of this document.

4

/s/ Mark Rumold

MARK RUMOLD

5

6 * * * * *
7

8 CERTIFICATE OF SERVICE
9 I hereby certify that on February 10, 2012, I caused a copy of the foregoing to be served on
10
11 counsel for Defendant via the Court’s ECF system.

12

/s/ Mark Rumold MARK RUMOLD

13

14

* * * * *

15 16 PURSUANT TO STIPULATION, IT IS SO ORDERED.

17

18 19 Dated: February 16, 2012 20

Hon. Yvonne Gonzalez Rogers United States District Judge

21

22

23

24

25

26

27

28 -4-
STIPULATION AND [PROPOSED] ORDER REGARDING FOIA REQUEST
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 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

7

United States District Court Northern District of California

8
ELECTRONIC FRONTIER FOUNDATION,
9

10 Pl

aintiff,

11 vs.

12 DEPARTMENT OF JUSTICE,
13
Defendant.
14

Case No.: 4:11-cv-05221-YGR
ORDER DENYING WITHOUT PREJUDICE PENDING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DIRECTING PARTIES TO SUBMIT FURTHER STATUS REPORT

15

On June 11, 2013, the Court issued an order, pursuant to the stipulation of the parties, holding

16 its decision on the parties’ pending cross-motions for summary judgment in abeyance. (Dkt. No.

17 60.) The Court granted the stipulation in light of recent developments concerning release of

18 previously classified information by the Director of National Intelligence (“DNI”) related to Section

19 215 of the USA PATRIOT Act of 2001, 50 U.S.C. § 1861 (“Section 215”). (See June 6, 2013 “DNI

20 Statement On Recent Unauthorized Disclosures of Classified Information,” at

21 http://www.odni.gov/index.php/newsroom/press-releases/191-press-releases-2013/868-dni-

22 statement-on-recent-unauthorized-disclosures-of-classified-information.) The parties submitted a

23 Joint Status Report on July 12, 2013 (Dkt. No. 61), setting forth their respective positions regarding

24 the timing of Defendant’s declassification review of responsive documents and release of any re-

25 classified, non-exempt documents previously withheld.

26

On July 19, 2013, the Court ordered that Defendant submit finalized classification

27 determinations and the dates by which it would release said documents to Plaintiff, as well as a

28 schedule for declassification of the remainder of the documents and a proposed schedule for further

United States District Court Northern District of California

1 briefing on the pending cross-motions for summary judgment in light of the above, reached after

2 meeting and conferring with Plaintiff.

3

Defendants have submitted a Status Report (Dkt. No. 63) addressing these points and

4 indicating that Plaintiff does not object to review and release of the documents on the schedule set

5 forth therein. Moreover, the parties agree that, following the declassification review and production

6 of documents previously withheld, “the remaining areas of dispute in this litigation will be

7 substantially narrowed if not eliminated.” (Id. at 3:22-24.)

8

Having considered the Status Report and the significant change in the posture of the case in

9 light of the developments detailed above, and good cause appearing, the Court ORDERS as follows:

10

(1) the pending Cross-Motions for Summary Judgment are DENIED WITHOUT PREJUDICE to

11 re-filing/re-noticing, if necessary, after Defendant’s release of documents;

12

(2) Defendant shall prepare for release to Plaintiff on or before September 10, 2013, non-

13 exempt records responsive to Plaintiff’s request for: (a) significant opinions or orders of the FISC,

14 and (b) any significant documents, procedures, or legal analyses incorporated into FISC opinions or

15 orders and treated as binding by the Department of Justice or the National Security Agency;

16

(3) as set forth in the Status Report, Defendant shall complete further re-review of “a subset

17 of the remaining responsive records” and release of non-exempt records on or before October 10,

18 2013; and shall complete re-review of all remaining responsive records and release of non-exempt

19 records on or before October 31, 2013;

20

The parties shall file a Joint Status Statement no later than December 6, 2013, advising the

21 Court of the parties’ discussions and proposing a schedule for further proceedings including, without

22 limitation, summary judgment motions.

23

This Order terminates Docket Nos. 40 and 41.

24

IT IS SO ORDERED.

25 Date: September 6, 2013
26 27

___________________________________________ YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

28

2

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

7

8
ELECTRONIC FRONTIER FOUNDATION,
9

10 Pl

aintiff,

11 vs.

Case No.: 4:11-cv-05221-YGR
ORDER RE: PRODUCTION OF DOCUMENTS FOR IN CAMERA REVIEW

United States District Court Northern District of California

12 DEPARTMENT OF JUSTICE,
13
Defendant.
14

15

Presently before the Court are the renewed cross-motions for summary judgment on

16 Plaintiff’s claim under the Freedom of Information Act (FOIA), 5 U.S.C. § 522, that Defendant is

17 withholding agency records without legitimate justification under any of the limited exemptions in

18 the statute. (Dkt. Nos. 77 and 79.) The Court has thoroughly reviewed the parties’ submissions and

19 heard oral argument on the motions. The Court has also reviewed in camera the ex parte, classified

20 version of the declaration of Jennifer L. Hudson, submitted in support of Defendant’s summary

21 judgment motion. Based upon this review, the Court ORDERS that Defendant produce pertinent

22 documents for in camera review.

23

In FOIA cases, a court reviews the government agency’s decision to withhold records de

24 novo, and the government bears the burden of proving records have been properly withheld. 5 25 U.S.C. § 552(a)(4)(B). “Unlike the review of other agency action that must be upheld if supported 26 by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the 27 agency to sustain its action.’” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 28 U.S. 749, 755 (1989) quoting 5 U.S.C. § 552(a)(4)(B). Thus, when claiming one of FOIA’s

United States District Court Northern District of California

1 exemptions, the agency bears the burden of demonstrating to a reviewing court that withheld

2 information is “clearly exempt.” Birch v. USPS, 803 F.2d 1206, 1209 (D.C. Cir. 1986).

3

District courts have broad discretion to order in camera inspection of the actual documents

4 the agency seeks to withhold. See 5 U.S.C. § 552(a)(4)(B). Lion Raisins v. U.S. Dep't of Agric., 354

5 F.3d 1072, 1079 (9th Cir. 2004); Quinon v. F.B.I., 86 F.3d 1222, 1228 (D.C. Cir. 1996). Such in

6 camera inspection is particularly necessary when the government agency has not sustained its burden

7 based on its testimony or declarations alone. Lion Raisins, 354 F.3d at 1079. In camera review is

8 also appropriate where there is evidence to suggest that the agency has not acted in good faith, either

9 within the FOIA action itself or in the underlying activities that generated the records sought.

10 Quinon, 86 F.3d at 1228; Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 543 (6th Cir. 2001), cert.

11 denied, 534 U.S. 1334 (2002); Allen v. Cent. Intelligence Agency, 636 F.2d 1287, 1298 (D.C. Cir.

12 1980) overruled on other grounds in Founding Church of Scientology of Washington, D.C., Inc. v.

13 Smith, 721 F.2d 828 (D.C. Cir. 1983). Further, in determining whether to undertake an in camera

14 review, a court must take into account concerns of judicial economy and the strength of the public’s

15 interest in disclosure of the documents sought. Rugiero, 257 F.3d at 543; Allen, 636 F.2d at 1298.

16

Here, the Court finds that an in camera inspection of the subject documents is warranted.

17 The evidence in the record shows that some documents, previously withheld in the course of this

18 litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably

19 segregable portions of those documents would have been required. Further, the withholding

20 followed an Order from this Court expressing concern that the agency had failed to explain
21 sufficiently why the withheld documents “would be so replete with descriptions of intelligence 22 activities, sources and methods that no portions thereof would contain” reasonably segregable and
producible, non-exempt information. (Order Re: Further Submission on Cross-Motion for Summary
23
Judgment, Dkt. No. 49, at 2-3.)
24
Further, the Court finds that the public’s interest in the documents withheld is significant.
25
The scope and legality of the government’s current surveillance practices of broad swaths of its
26
citizenry is a topic of intense public interest and concern. “The Freedom of Information Act was
27
aimed at ending secret law and insuring that this country have ‘an informed, intelligent electorate.””
28
Allen v. Cent. Intelligence Agency, 636 F.2d 1287, 1299 (D.C. Cir. 1980), citing H.R.Rep.No.1497,

2

United States District Court Northern District of California

1 89th Cong., 2d Sess. 12 (1966) U.S.Code Cong. & Admin.News 1966, p. 2419. In light of this

2 public interest, in camera review to assure that the agency is complying with its obligations to

3 disclose non-exempt material is certainly merited. Finally, as the parties have narrowed the range of

4 documents for review, the burden on judicial resources is not significant.

5

Based upon the foregoing, Defendant is ORDERED to deliver to the Court the following

6 documents for in camera inspection to assist the Court in making a responsible de novo

7 determination whether the documents are clearly exempt from disclosure under the FOIA:

8

(1) FISC opinion dated 8/20/2008 (6 pages);

9

(2) FISC order dated 10/31/2006 (19 pages);

10

(3) FISC orders dated 2/17/2006 (17 pages);

11

(4) FISC orders dated 2/24/2006 (8 pages);

12

(5) FISC orders dated 12/16/2005 (16 pages).

13 (See Dkt. No. 77-2, Vaughn Index, at 1-3, Doc. No. 14A, 86J, 89D, 89K, 89S.)

14

IT IS SO ORDERED.

15 Date: June 13, 2014
16 17

___________________________________________ YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

18

19

20

21

22

23

24

25

26

27

28

3

 
 Case4:11-cv-05221-YGR Document90 Filed08/11/14 Page1 of 13

United States District Court Northern District of California

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

7

8
ELECTRONIC FRONTIER FOUNDATION,
9

10 Pl

aintiff,

11 vs.

Case No.: 4:11-cv-05221-YGR
ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 77 AND 79)

12 DEPARTMENT OF JUSTICE,
13
Defendant.
14

15

Presently before the Court are the renewed cross-motions for summary judgment on the claim

16 of plaintiff Electronic Frontier Foundation (“EFF” or “Plaintiff”) under the Freedom of Information

17 Act (“FOIA”), 5 U.S.C. § 522. EFF alleges that defendant Department of Justice (“DOJ”) is

18 withholding agency records without legitimate justification under any of the limited exemptions in

19 the statute. (Dkt. Nos. 77 and 79.) DOJ responds that information concerning the details of a

20 government counter-terrorism program undertaken pursuant to Section 215 of the USA PATRIOT

21 Act, 50 U.S.C. § 1861(a)(1), (“Section 215”), including the documents sought by EFF containing

22 significant legal interpretation of the government’s authority under Section 215, is exempt from

23 disclosure under FOIA.

24

By way of background, the parties previously filed and argued cross-motions for summary

25 judgment, and supplemented briefing as to the sufficiency of the public identification of the

26 documents withheld and the basis therefor in response to this Court’s order. While those cross-

27 motions were still pending, certain classified information was the subject of unauthorized

28 disclosures, widely reported in the press. These unauthorized disclosures led to the government’s

declassification and production of hundreds of pages of formerly highly classified documents that

Case4:11-cv-05221-YGR Document90 Filed08/11/14 Page2 of 13

United States District Court Northern District of California

1 discuss, among other things, the collection of telephony metadata pursuant to Section 215 of the

2 USA PATRIOT Act (“the call record collection program”). Apparently among the declassified

3 documents were many documents responsive to EFF’s FOIA request and previously withheld.

4

The parties agreed that further summary judgment briefing would be necessary to resolve the

5 propriety of the remaining withholdings. Pursuant to the parties’ stipulation, the Court ordered that

6 further summary judgment briefing would be based on a “representative sample” of withheld

7 records. (See Stipulation at Dkt. No. 71; Order at Dkt. No. 72.) In its opposition and cross-motion,

8 EFF further narrowed its challenge to DOJ’s: (1) withholding, in full, of any opinion or order of the

9 Foreign Intelligence Surveillance Court (“FISC”); (2) withholding of the names of

10 telecommunication service providers participating in the call record collection program under

11 Section 215; and (3) withholding, in full, of a formal opinion of the Office of Legal Counsel

12 (“OLC”) described in the Declaration of Paul P. Colborn (Dkt. No. 77-5) as a memorandum provided

13 to the Department of Commerce dated January 4, 2010 regarding “the interaction between disclosure

14 in the Patriot Act, as amended, and prohibitions in the Census Act.” (Id. at ¶ 13 [describing the

15 document referred to hereinafter as “the Census Memorandum”].)

16

The Court has thoroughly reviewed the parties’ submissions and heard oral argument on the

17 new cross-motions for summary judgment. The Court has also conducted an in camera review of the

18 ex parte, classified version of the declaration of Jennifer L. Hudson, the ex parte Declaration by the

19 Chief of Operations, Office of Intelligence, National Security Division, Department of Justice (“the

20 NSD Declaration”) concerning DOJ’s use of the Census Memorandum, and certain documents at

21 issue in the cross-motions, specifically:

22

(1) FISC opinion dated 8/20/2008 (6 pages);

23

(2) FISC order dated 10/31/2006 (19 pages);

24

(3) FISC orders dated 2/17/2006 (17 pages);

25

(4) FISC orders dated 2/24/2006 (8 pages);

26

(5) FISC orders dated 12/16/2005 (16 pages);

27

(6) the Census Memorandum and the related application of the Department of Justice in

28

connection with which the Census Memorandum was submitted to the FISC.

2

Case4:11-cv-05221-YGR Document90 Filed08/11/14 Page3 of 13

United States District Court Northern District of California

1 (See Dkt. No. 77-2, Vaughn Index, at 1-3, Doc. No. 14A, 86J, 89D, 89K, 89S; see also Order dated

2 June 13, 2014, Dkt. No. 85, and Ordered dated July 24, 2014, Dkt. No. 88.)

3

Having carefully considered the papers and arguments submitted, and for the reasons set forth

4 below, the Court hereby Orders that the cross-motions are GRANTED IN PART AND DENIED IN PART.

5 DOJ has established a proper basis for withholding, in full, the FISC orders and opinions at issue,

6 and for withholding all names of telecommunications providers participating in the Call Records

7 Collection Program, under FOIA Exemptions 1 and 3. Thus, summary judgment is GRANTED in

8 favor of DOJ on the claim for disclosure of this information. However, DOJ has not established that

9 the Census Memorandum is properly withheld under Exemption 5, and EFF is GRANTED summary

10 judgment on its claim for FOIA violation as to this document.

11 I.

APPLICABLE LEGAL STANDARDS

12

FOIA safeguards the public’s ability to hold the government accountable for its actions.

13 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989); NLRB v.

14 Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA requires disclosure of all agency

15 records at the request of the public unless the records fall within one of nine narrow exemptions. See

16 5 U.S.C. § 552(b); see also Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). These “limited

17 exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of

18 the Act.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal

19 citation omitted). The exemptions “have been consistently given a narrow compass,” and agency

20 records that “do not fall within one of the exemptions are improperly withheld.” Dep’t of Justice v.

21 Tax Analysts, 492 U.S. 136, 151 (1989) (internal quotation marks omitted).

22

The exemptions invoked with respect to the documents at issue here are those allowing the

23 government to withhold matters disclosing information:

24

 “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” when properly classified

25

as such (Exemption 1, 5 U.S.C. § 552(b)(1));

26

 specifically exempted from disclosure by other federal statutes if the statute

27

establishes particular criteria for withholding or refers to the particular types of

material to be withheld. (Exemption 3, 5 U.S.C. § 552(b)(3));

28

3

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1

 constituting “inter-agency or intra-agency” records not otherwise available “by law to a party other than an agency in litigation with the agency” (Exemption 5, 5

2

U.S.C. § 522(b)(5));

3

 concerning “procedures for law enforcement investigations or prosecutions…if

4

such disclosure could reasonably be expected to risk circumvention of the law.” (Exemption 7E, 5 U.S.C. § 552(b)(7)(E)).1

5 The Court addresses each exemption in turn.

6

Under Exemption 1, material that has been properly classified is exempt from disclosure.

7 Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 144-45 (1981). For information to be

8 properly classified pursuant to Exemption 1, it must meet the requirements of Executive Order

9 13,526, “Classified National Security Information,” 75 Fed. Reg. 707 (Dec. 29, 2009):

10

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

11

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

12

United States Government;

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

13

in section 1.4 of this order; and

(4) the original classification authority determines that the unauthorized

14

disclosure of the information reasonably could be expected to result in

15

damage to the national security, which includes defense against transnational

terrorism, and the original classification authority is able to identify or

16

describe the damage.

17 Id. § 1.1, 75 Fed. Reg. at 707. The Executive Order lists three classification levels for national

18 security information: top secret, secret, and confidential. Id. § 1.2, 75 Fed. Reg. at 707-08.

19

Under Exemption 3, “the sole issue for decision is the existence of a relevant statute and the

20 inclusion of withheld material within the statute’s coverage.” Fitzgibbon v. CIA, 911 F.2d 755, 761-

21

22

1 As to certain withheld FISC Orders, the government also invoked Exemptions 6 and 7C in

23 its Vaughn index (Dkt. No. 77-2). Those exemptions concern records that would, if disclosed, constitute an unwarranted invasion of personal privacy. 5 U.S.C. § 522(b)(6) and 522(b)(7)(C). EFF

24 does not challenge the portions withheld on those grounds. (See Mtn. at n.2, Dkt. No. 77.) Because

the Court finds that the documents are properly withheld under Exemptions 1, 3 and 7(E), this 25 decision does not reach the propriety of the government’s withholding under Exemptions 6 and 7C.

26

Although not listed in its Vaughn index with respect to the narrowed set of documents at

issue in the motion, DOJ’s brief indicates that it is also withholding documents under Exemption

27 7(A), interference with an ongoing national security investigation. 5 U.S.C. § 522(b)(7)(A); see

Motion at p. 2:13-14, 23:18-24:11.). Because the Court finds the other exemptions support 28 withholding and this exemption was not invoked particularly as to the documents now at issue, the

Court need not reach the merits of withholding pursuant to Exemption 7(A).

4

Case4:11-cv-05221-YGR Document90 Filed08/11/14 Page5 of 13

United States District Court Northern District of California

1 62 (D.C. Cir. 1990). Congress included Exemption 3 to recognize the existence of collateral statutes

2 that limit the disclosure of information held by the government, and to incorporate such statutes

3 within FOIA’s exemptions. See Balridge v. Shapiro, 455 U.S. 345, 352-53 (1982); Essential Info.,

4 Inc. v. U.S. Info. Agency, 134 F.3d 1165, 1166 (D.C. Cir. 1998). Here, DOJ relies on two other

5 statutes to support withholding: (1) the National Security Act of 1947, as amended by the

6 Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403-1(i), which protects

7 intelligence sources and methods from unauthorized disclosure; and (2) Section 6 of the National

8 Security Agency Act of 1959, codified at 50 U.S.C. § 3605, which provides that “[n]othing in this

9 Act or any other law . . . shall be construed to require the disclosure of the organization or any

10 function of the National Security Agency, or any information with respect to the activities

11 thereof….”

12

Exemption 5 shields from disclosure “those documents, and only those documents [that are]

13 normally privileged in the civil discovery context,” such as under the deliberative process privilege,

14 attorney-client privilege, or attorney work-product privilege. NLRB v. Sears, Roebuck & Co., 421

15 U.S. 132, 149 (1975) (“Sears”); see also Carter v. Dep’t of Commerce, 307 F.3d 1084, 1088 (9th

16 Cir. 2002). Under Exemption 5, the deliberative process privilege extends to those documents that

17 are both “predecisional” and “deliberative.” See Carter, 307 F.3d at 1089. Documents covered by

18 Exemption 5 include those “reflecting advisory opinions, recommendations and deliberations

19 comprising part of a process by which governmental decisions and policies are formulated.” Sears,

20 421 U.S. at 150. Agencies may invoke the deliberative process privilege: (1) to encourage open,

21 frank discussions on matters of policy between subordinates and superiors; (2) to protect against

22 premature disclosure of proposed policies before they are finally adopted; and (3) to protect against

23 public confusion that might result from disclosure of reasons and rationales that were not in fact

24 ultimately the grounds for an agency’s action. See Sears, 421 U.S. at 150-54.

25

Exemption 7(E) protects from disclosure techniques and procedures used to prevent and

26 protect against crimes as well as techniques and procedures used to investigate crimes after they have

27 been committed. See, e.g., PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250-51 (D.C. Cir. 1993)

28 (holding that portions of FBI manual describing patterns of violations, investigative techniques, and

5

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United States District Court Northern District of California

1 sources of information available to investigators were protected by Exemption 7(E)). To determine

2 if Exemption 7(E) applies, the Court must determine whether the records were “compiled for law

3 enforcement purposes” within the meaning of FOIA. Rosenfeld v. United States Dep’t of Justice, 57

4 F.3d 803, 808 (9th Cir. 1995). The Ninth Circuit accords special deference to law enforcement

5 agencies in an Exemption 7 threshold determination. Binion v. Dep’t of Justice, 695 F.2d 1189, 1194

6 (9th Cir. 1983). Thus, an agency with a clear law enforcement mandate need only establish a

7 “rational nexus” between its law enforcement duties and the document for which Exemption 7 is

8 claimed. Id. at 1193-1194; Church of Scientology of California v. U.S. Dep't of Army, 611 F.2d 738,

9 748 (9th Cir. 1979); MacPherson v. IRS, 803 F.2d 479, 482 (9th Cir. 1986) (citing Binion, 695 F.2d

10 at 1194).

11

FOIA disputes involving the propriety of agency withholdings are commonly resolved on

12 summary judgment. See, e.g., Nat’l Wildlife Fed’n v. U.S. Forest Service, 861 F.2d 1114, 1115 (9th

13 Cir. 1988). Summary judgment is proper when the moving party shows that “there is no genuine

14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F.R.C.P. 56

15 (a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

16

In FOIA cases, a court reviews the government’s decision to withhold records de novo, and

17 the government bears the burden of proving records have been properly withheld. 5 U.S.C. §

18 552(a)(4)(B); Reporters Comm., 489 U.S. at 755. Even when the exemptions invoked raise national

19 security concerns, the court continues to have an “independent responsibility” to conduct a thorough

20 de novo evaluation of the government’s withholdings. Goldberg v. Dep’t of State, 818 F.2d 71, 76-

21 77 (D.C. Cir. 1987) (noting Congress amended FOIA to clarify its “intent that courts act as an

22 independent check on challenged classification decisions”). The government bears the burden of

23 demonstrating to a reviewing court that withheld information is “clearly exempt.” Birch v. U.S.

24 Postal Svc., 803 F.2d 1206, 1209 (D.C. Cir. 1986) (citing Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.

25 Cir. 1973)). To satisfy that burden, the government “must provide a relatively detailed justification,

26 specifically identifying the reasons why a particular exemption is relevant and correlating those

27 claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc.

28 v. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

6

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United States District Court Northern District of California

1

Bearing these principles in mind, the Court turns to the responsive information withheld by

2 DOJ and whether DOJ has established that the information may be withheld under the FOIA

3 exemptions asserted.

4 II. DISCUSSION

5

A. Withholding In Full of FISC Opinions and Orders

6

DOJ has withheld certain FISC Orders and Opinions in full pursuant to Exemptions 1 and 3.

7 (Vaughn Index, Documents 14A, 86J, 89D, 89K, 89S). With respect to a subset of these (Documents

8 89D, 89K, and 89S), DOJ also asserts Exemption 7(E).

9

The Court finds DOJ’s showing, and the Court’s review of the documents themselves,

10 supports withholding under these exemptions. The FISC orders are properly withheld to protect

11 intelligence sources and methods used by the government to gather intelligence data. The orders

12 discuss specific techniques authorized by the FISC, the details of the underlying investigations, and

13 details concerning how the government operationally and technically implements the FISC-

14 authorized techniques, which the government continues to employ. Disclosure of the documents

15 would reveal intelligence activities or methods described in the FISC orders could allow targets of

16 national security investigations to divine what information was collected when, as well as gaps in

17 surveillance, thus providing a roadmap for evading surveillance. As set forth in the DOJ’s evidence,

18 the withheld information, in combination with already-public information, would allow targets of

19 government investigations to evade surveillance, thereby jeopardizing national security. Moreover,

20 based upon the Court’s review, the documents must be withheld in full and contain no reasonably

21 segregable information. Consequently, the documents are properly exempted from disclosure under

22 Exemptions 1, 3 and 7(E).

23

B. Withholding of Names of Telecommunication Service Providers Participating

24

in the Call Record Collection Program

25

EFF withdrew its challenges as to most of the information withheld in those documents DOJ

26 released in part. However, EFF continues to seek the identity of those telecommunications service

27 providers who were ordered to produce their business records as part of the telephone records

28 collection program.

7

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1

DOJ offers evidence that disclosing which telecommunications companies assisted with NSA

2 intelligence activities could lead to serious national security problems, since it could reveal which

3 channels of communication may or may not be secure and thereby provide a roadmap for avoiding

4 government surveillance for those who might plot activity such as terrorist attacks. See Halkin v.

5 Helms, 598 F.2d 1, 8 (D.C. Cir. 1978) (rejecting argument “that admission or denial of the fact of

6 acquisition of [certain] communications…would not reveal which circuits NSA has targeted” as

7 “naïve”).

8

EFF’s argument for disclosure does not question whether the information about the particular

9 identities would implicate national security and investigation methods exemptions, but instead

10 contends that this information has lost its exempt character because the providers’ names have been

11 officially acknowledged, and any exemption for the information thereby waived. See Fitzgibbon v.

12 CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). More particularly, EFF argues that two government

13 officials—Geoffrey Stone and Raj De—have publicly confirmed the participation of three

14 telecommunications companies in the NSA’s call records program. As such, this “official

15 acknowledgement” overcomes whatever otherwise valid exemption the government might assert.

16

The standard for official disclosure requires plaintiff to identify “an intentional, public

17 disclosure made by or at the request of a government officer acting in an authorized capacity by the

18 agency in control of the information at issue,” that is “‘as specific as the information previously

19 released.’” See Pickard v. DOJ, 653 F.3d 782, 787, 786 (9th Cir. 2011) (quoting, in part, Fitzgibbon,

20 911 F.2d at 765). “[A]lthough an agency bears the burden of proving that a FOIA exemption applies

21 to a given document, a plaintiff asserting that information has been previously disclosed bears the

22 initial burden of pointing to specific information in the public domain that duplicates that being

23 withheld.” Public Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993) (citing Afshar v.

24 Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). The test is a stringent one and presents

25 a “high hurdle for a FOIA plaintiff...[as the] Government’s vital interest in information relating to

26 national security and foreign affairs dictates that it must be.’” Public Citizen, 11 F.3d at 203.

27

The Court finds that Plaintiff has not met its burden. Neither of the two supposed “official

28 acknowledgements” waived the exemptions asserted by DOJ. The Court analyzes each:

8

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United States District Court Northern District of California

1

EFF first contends that statements by Geoffrey Stone, a former member of the federal

2 government’s Review Group on Intelligence and Communications Technologies, disclosed the

3 telecommunications providers’ identities. Leaving aside the issue of whether Stone’s position as a

4 member of that Review Group did or did not make him a “government official,” the timing of the

5 statements shows that they were not made while he was acting in an authorized government capacity.

6 The statements at issue were made in an opinion piece in late March 2014, in which he stated that

7 “telephone companies like Sprint, Verizon, and AT&T are required to turn over [records] to the

8 NSA.” Stone’s membership on the Review Group ended in January 2014. Thus, he could not speak

9 for any agency of the United States at that point. Hudson River Sloop Clearwater, Inc. v. Dep’t of

10 Navy, 891 F.2d 414, 421-22 (2d Cir. 1989) (“Admiral Carroll’s statements cannot effect an official

11 disclosure of information since he is no longer an active naval officer…Officials no longer serving

12 with an executive branch department cannot continue to disclose official agency policy[.]”); Afshar,

13 702 F.2d at 1133 (books written by former agency official did not constitute official disclosures);

14 Phillippi v. CIA, 655 F.2d 1325, 1331 (D.C. Cir. 1981) (statements by former CIA director that had

15 been pre-cleared by agency for public disclosure do not constitute agency disclosure).

16

Moreover, his statement was that companies “like Sprint, Verizon, and AT&T” are part of the

17 program, indicating that the list was hypothetical or, at least, non-exclusive. The ambiguity of the

18 statement is not a sufficient basis to require that the DOJ specifically identify all telecommunications

19 service providers associated with the program. “[E]ven if a fact has been the subject of media

20 speculation, its official acknowledgment could damage national security.” Public Citizen, 11 F.3d at

21 201 (citing Afshar, 702 F.2d at 1130).

22

Next, EFF argues that the statements of Raj De, General Counsel of the NSA, confirmed that

23 “three different providers” participated in the call record collection program. The Court does not

24 agree. De’s statement was a response to a question presented to him on a discussion panel about the

25 need for a program that aggregated data from telecommunications providers in advance, rather than

26 the government seeking information from individual providers on a “one-off basis.” (Second

27 Rumold Declaration, Exh. C [Counterterrorism, National Security, and the Rule of Law, Aspen

28 Security Forum Panel (July 18, 2013)] at 12.) De’s reference to “three different providers” cannot be

9

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1 analyzed in a vacuum. The remark was preceded by his statement that he was “using a hypothetical

2 example” to illustrate his answer. (Id. at 13.) De went on to say that, if an investigation were done

3 in the traditional way, under the hypothetical presented (tracking down the phone contacts made by a

4 particular phone number tied to a terrorist organization), the investigation would require searches by

5 “multiple providers” followed by analytics to aggregate the data from “three different providers.”

6 (Id.) De did not release or acknowledge officially any classified information in the context of

7 discussing this hypothetical example. Further, even if the statement could be considered an

8 acknowledgement that “three different providers” participated in the program, that information is not

9 identical to what EFF seeks here: the specific identities of all telecommunications service providers

10 that participated in the program. The public availability of “similar” or “overlapping” information

11 does not suffice to negate the government’s classification; “instead, the specific information sought

12 by the plaintiff must already be in the public domain by official disclosure.” Wolf v. C.I.A., 473 F.3d

13 370, 378 (D.C. Cir. 2007) (citing Public Citizen, 11 F.3d at 201, 203; Military Audit Project v.

14 Casey, 656 F.2d 724, 752-53 (D.C.Cir. 1981)); accord Hudson River, 891 F.2d at 421.

15

The inherent risks to national security and government investigations of identifying the

16 specific telecommunications carriers is not mitigated by the government’s declassification of general

17 information about the call record collection program. As the Ninth Circuit has recognized, official

18 confirmation of the existence of or general information about an intelligence program does not

19 eliminate the dangers to national security of compelling disclosure of the program’s details.

20 Mohamed v. Jeppesen, 614 F.3d 1070, 1086, 1090 (9th Cir. 2010) (official acknowledgment of

21 existence of CIA extraordinary rendition program did not preclude details of program remaining

22 state secrets if details’ disclosure would risk harm to national security); Al-Haramain Islamic

23 Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (concluding that even though the

24 government had publicly acknowledged the existence of terrorist surveillance program, disclosing

25 whether the plaintiff had been surveilled would compromise national security).

26

C. Withholding Formal OLC Advice Memorandum

27

Finally, EFF challenges the withholding of the Census Memorandum, a legal advice

28 memorandum from OLC to the Department of Commerce. DOJ has withheld the OLC

10

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United States District Court Northern District of California

1 memorandum pursuant to Exemption 5, asserting that it was prepared by OLC for the purpose of

2 providing confidential legal advice to the Department of Commerce regarding the interaction

3 between disclosure provisions in the Patriot Act, as amended, and prohibitions on disclosure in the

4 Census Act, 13 U.S.C. §§ 8, 9, 214, and therefore subject to the deliberative process privilege. DOJ

5 submits evidence that the Census Memorandum was prepared to aid the Department of Commerce in

6 determining its legal obligations with respect to disclosure of census information to federal law

7 enforcement of national security officers.

8

EFF argues that, even if the deliberative process privilege might have shielded the Census

9 Memorandum from disclosure when it was initially created, it can no longer be withheld because it

10 has become a controlling statement of the executive branch’s legal position and, specifically, has

11 been adopted as the opinion of the executive branch in proceedings before the FISC. Sears, 421 U.S.

12 at 152161. The Court agrees.

13

“[T]he public is vitally concerned with the reasons…for an agency policy actually adopted.”

14 Sears, 421 U.S. at 152. “These reasons, if expressed within the agency, constitute the ‘working law’

15 of the agency” and cannot be withheld from disclosure under Exemption 5. Sears, 421 U.S. at 152-

16 53. Thus, an agency is “required to disclose ‘orders and interpretations which it actually applies to

17 cases before it,’ in order to prevent the development of ‘secret law.’” Coastal States Gas Corp. v.

18 Dep't of Energy, 617 F.2d 854, 867-68 (D.C. Cir. 1980) (citing Sterling Drug, Inc. v. FTC, 146 U.S.

19 App. D.C. 237, 247 (1971)); see also Brennan Ctr. for Justice at New York Univ. Sch. of Law v. U.S.

20 Dep't of Justice, 697 F.3d 184, 208 (2d Cir. 2012) (finding documents otherwise subject to

21 deliberative process and attorney-client privileges required to be disclosed because OLC’s draft legal

22 opinion was incorporated into client-agency’s guidance documents).

23

The Second Circuit’s recent decision in New York Times Co. v. U.S. Dep’t of Justice, 13-422

24 L, __F.3d__, 2014 WL 2838861 (2d Cir. June 23, 2014) is instructive. In the New York Times case,

25 the court held that an OLC advice memorandum provided to the Department of Defense (“DOD”)

26 lost its privileged character because numerous DOD and DOJ officials referred to the legal analysis

27 in public statements, and an officially released DOJ White Paper incorporated the details of the

28 OLC’s analysis in a manner that “virtually paralleled” the OLC advice memorandum. Id. at *12, 13-

11

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United States District Court Northern District of California

1 16; see also Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 357 (2d Cir. 2005) (“repeated

2 references” to OLC memorandum by the Attorney General and high-ranking DOJ officials

3 “demonstrate[d] that the Department regarded the [m]emorandum as the exclusive statement of, and

4 justification for, its new policy....”). Thus, DOJ could no longer withhold the OLC advice

5 memorandum under FOIA Exemption 5.

6

Here, the Court’s review of the evidence, both in the public record and in camera, establishes

7 that the Census Memorandum was cited as legal authority and adopted as the working law of DOJ.

8 The declaration of Paul P. Colborn, Special Counsel in the OLC, stated that the OLC memorandum

9 was “provided to the [FISC] in connection with an application submitted by the Department [of 10 Justice] in a matter that was concluded.” (Colborn Decl., ¶ 17.)2 The Court’s in camera review

11 confirms that DOJ cited the Census Memorandum in an application to the FISC, referencing it as

12 DOJ’s legal position on the census-related issues therein, and contrasting it with other legal issues

13 argued in the application. DOJ offered the Census Memorandum as a statement of the law to bolster

14 its legal arguments concerning matters unrelated to the subject of the Census Memorandum itself.

15 Thus, DOJ cited the Census Memorandum in the context of carrying out its duties, and in connection

16 with matters completely unrelated to the OLC’s provision of advice to the Department of Commerce.

17 Moreover, DOJ has indicated that it will continue to rely on the Census Memorandum in other

18 contexts as necessary.

19

DOJ argues that the D.C. Circuit recently determined that OLC memoranda are exempt from

20 disclosure under Exemption 5 and do not qualify as final opinions or secret law, citing Elec. Frontier

21 Found. v. U.S. Dep't of Justice, 739 F.3d 1, 9 (D.C. Cir. 2014) (“[b]ecause OLC cannot speak

22 authoritatively on the FBI's policy, the OLC Opinion differs from memoranda we have found to

23 constitute the “working law” of an agency”). Such a blanket argument ignores that the proper

24 determination of whether a document can be withheld under “the deliberative process privilege

25 is…dependent on the individual document and the role it plays in the administrative process.”

26 Coastal States v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980); see also Lardner v. Dep't of

27

28

2 In addition to its submission to the FISC, the Census Memorandum was shared, in

confidence, with the U.S. Senate Select Committee on Intelligence. (Colborn Dec. at ¶17, Exh. D.)

12

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United States District Court Northern District of California

1 Justice, 638 F. Supp. 2d 14, 22 (D.D.C. 2009) (noting that “the fact that the FOIA requests in the two

2 actions, as well as the materials responsive to those requests, differ considerably counsels against

3 application of collateral estoppel”). Regardless of whether OLC attorneys have policymaking

4 authority within the Department of Commerce (the agency to whom the advice was given) or DOJ

5 (the agency that used the advice), it was the DOJ that cited the document as a statement of applicable

6 law and policy in an unrelated proceeding.

7 III. CONCLUSION

8

Based upon the foregoing, the DOJ’s Motion for Summary Judgment is GRANTED IN PART

9 AND DENIED IN PART and EFF’s Motion for Summary Judgment is GRANTED IN PART AND DENIED

10 IN PART.

11

The parties are directed to submit a proposed form of judgment, approved as to form by both

12 parties, forthwith.

13

This terminates Dkt. Nos. 77 and 79.

14

IT IS SO ORDERED.

15 Date: August 11, 2014
16 17

___________________________________________ YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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24

25

26

27

28

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 Case4:11-cv-05221-YGR Document77 Filed03/28/14 Page1 of 33

1

STUART F. DELERY Assistant Attorney General

2 MELINDA HAAG United States Attorney
3 ELIZABETH J. SHAPIRO

4

Deputy Branch Director STEVEN Y. BRESSLER D.C. Bar No. 482492

5 Senior Counsel

United States Department of Justice 6 Civil Division, Federal Programs Branch

7 P.O. Box 883
8 Washington, D.C. 20044 Telephone: (202) 305-0167
9 Facsimile: (202) 616-8470 10 Email: Steven.Bressler@usdoj.gov

11 Attorneys for the United States Department of Justice

12

UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

OAKLAND DIVISION

15

16

ELECTRONIC FRONTIER FOUNDATION, ) Case No. 4:11-cv-05221-YGR

17

)

18

Plaintiff,

v.

) Date: June 3, 2014 ) Time: 2:00 p.m.

19

) Place: Oakland U.S. Courthouse

UNITED STATES DEPARTMENT OF 20 JUSTICE,

) Judge: Hon. Yvonne Gonzalez Rogers )

21 Defendant.

) NOTICE OF MOTION AND MOTION ) FOR SUMMARY JUDGMENT AND

22

) MEMORANDUM IN SUPPORT

23

)

24

25

26

27

28

Case No. 4:11-cv-05221-YGR Defendant’s Notice of Motion and Motion for Summary Judgment

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1

TABLE OF CONTENTS

2 NOTICE OF MOTION................................................................................................................... 1

3 MOTION FOR SUMMARY JUDGMENT.................................................................................... 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1
4 PRELIMINARY STATEMENT .................................................................................................... 1
5 BACKGROUND ............................................................................................................................ 2

6

A. Section 215 of the USA PATRIOT Act ........................................................................... 2

7

B. Plaintiff’s FOIA Request and This Civil Action .............................................................. 5

8 ARGUMENT.................................................................................................................................. 7

9

I. FOIA Requires the Disclosure Only of Non-Exempt Records, and This

Court Lacks Authority to Compel the Disclosure of Exempt Records................... 7 10
II. The Defendants Have Properly Withheld Records that Are Exempt
11 from Disclosure under FOIA .................................................................................. 9

12

A. The Defendants Have Properly Withheld Records under FOIA Exemption 1 ................ 9

13

B. Defendant Has Properly Withheld Records under FOIA Exemption 3 ........................... 5

14

C. Defendant Has Properly Withheld a Privileged Legal Advice Memorandum

under FOIA Exemption 5................................................................................................. 7

15

D. The Government Has Properly Withheld Information Subject To Exemption

16

7(E) ................................................................................................................................ 21

17

E. The Government Has Properly Withheld Information Subject To Exemption 7(E) ................................................................................................................................ 23

18

F. Defendants Have Produced All Reasonably Segregable Portions of

19

Responsive Records ........................................................................................................ 4

CONCLUSION............................................................................................................................. 25 20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

CASES

3 ACLU v. Clapper,

4 959 F. Supp. 2d 724 (S.D.N.Y. 2013)........................................................................................ 11

5 ACLU v. Dep't of Defense,

6 628 F.3d 612 (D.C. Cir. 2011) ................................................................................................... 23

7 ACLU v. Dep't of Justice,

8 265 F. Supp. 2d 20 (D.D.C. 2003) ............................................................................................ 32

9 ACLU Found. v. Dep't of Justice,

10 833 F. Supp. 399 (S.D.N.Y. 1993)............................................................................................. 30

11 Al-Haramain Islamic Found. v. Bush,

12 507 F.3d 1190 (9th Cir. 2007) ................................................................................................... 19

13 Amnesty Int'l v. CIA,

14 728 F. Supp. 2d 479 (S.D.N.Y. 2010).................................................................................. 21, 26

15 Assembly of State of Cal. v. Dep't of Commerce,

16 968 F.2d 916 (9th Cir. 1992) ............................................................................................... 25, 26

17 Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,

18 830 F.2d 331 (D.C. Cir. 1987) ................................................................................................... 16

19 Balridge v. Shapiro,

20 455 U.S. 345 (1982)................................................................................................................... 22

21 Berman v. CIA,

22 501 F.3d 1136 (9th Cir. 2007) ................................................................................................... 18

23 Binion v. Dep't of Justice,

24 695 F.2d 1189 (9th Cir. 1983) ............................................................................................. 29, 30

25 Bonner v. Dep't of State,

26 928 F.2d 1148 (D.C. Cir. 1991) ................................................................................................. 13

27 Brinton v. Dep't of State,

28 636 F.2d 600 (D.C. Cir. 1980) ................................................................................................... 27

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1 Carter v. United States Dep't of Commerce, 2 307 F.3d 1084 (9th Cir. 2002) ............................................................................................. 24, 25 3 Church of Scientology of Cal. v. Dep't of the Army, 4 611 F.2d 738 (9th Cir. 1980) ......................................................................................... 16, 29, 30 5 CIA v. Sims, 6 471 U.S. 159 (1985)................................................................................................. 14, 22, 23, 24 7 Coastal Delivery Corp. v. U.S. Customs Serv., 8 272 F. Supp. 2d 958 (C.D. Cal. 2003) ....................................................................................... 15 9 Coastal States Gas Corp. v. Dep't of Energy, 10 617 F.2d 854 (D.C. Cir. 1980) ................................................................................................... 25 11 Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 12 331 F.3d, 918 (D.C. Cir. 2003) ................................................................................................. 16 13 Dep''t of Air Force v. Rose, 14 425 U.S. 352 (1976)................................................................................................................... 14 15 Dep't of Interior v. Klamath Water Users Protective Ass'n, 16 532 U.S. 1 (2001)................................................................................................................. 25, 26 17 Dow Jones & Co. v. Dep't of Justice, 18 917 F.2d 571 (D.C. Cir. 1990) ................................................................................................... 25 19 Elec. Privacy Info. Ctr. v. Dep't of Justice, 20 584 F.Supp.2d 65 (D.C. Cir. 2008)............................................................................................ 28 21 Essential Info., Inc. v. U.S. Info. Agency, 22 134 F.3d 1165 (D.C. Cir. 1998) ................................................................................................. 22 23 Fisher v. Dep't of Justice, 24 772 F. Supp. 7 (D.D.C. 1991), ................................................................................................... 30 25 Fitzgibbon v. CIA, 26 911 F.2d 755 (D.C. Cir. 1990) ............................................................................................. 22, 32 27 Frontier Found. v. Dep't of Justice, 28 No 11-939, 2012 WL 4319901 (D.D.C. Sept. 21, 2012)........................................................... 27

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1 Frontier Found. v. Dep't of Justice, 2 739 F.3d 1 (D.C. Cir. 2014) ................................................................................................ 27, 28 3 Frugone v. CIA, 4 169 F.3d 772 (D.C. Cir. 1999) ............................................................................................. 16, 17 5 FTC v. Warner Commc'ns, Inc., 6 742 F.2d 1156 (9th Cir. 1984) ................................................................................................... 25 7 Greyshock v. U.S. Coast Guard, 8 107 F.3d 16, 1997 WL 51514 (9th Cir. Feb. 6, 1997) ............................................................... 21 9 Hale v. U.S. Dep't of Justice, 10 973 F.2d 894 (10th Cir. 1992), .................................................................................................. 14 11 Halkin v. Helms, 12 598 F.2d 1 (D.C. Cir. 1978) ....................................................................................................... 18 13 Halperin v. CIA, 14 629 F.2d 144 (D.C. Cir. 1980) ................................................................................................... 17 15 Hayden v. NSA,, 16 608 F.2d 1381 (D.C. Cir. 1979) ................................................................................................. 24 17 Hunt v. CIA, 18 981 F.2d 1116 (9th Cir. 1992) ....................................................................................... 15, 16, 18 19 John Doe Agency v. John Doe Corp., 20 493 U.S. 146 (1989)............................................................................................................. 14, 15 21 Kasza v. Browner, 22 133 F.3d 1159 (9th Cir. 1998) ................................................................................................... 22 23 Keys v. Dep't of Justice, 24 830 F.2d 337 (D.C. Cir. 1987) ................................................................................................... 30 25 Klamath Siskiyou Wildlands Ctr. v. Dep't of Interior, 26 Civ. No. 07-325-CL, 2007 WL 4180685 (D. Or. Nov. 21, 2007) ............................................. 31 27 Klayman v. Obama, 28 957 F. Supp. 2d 1 (D.D.C. 2013) ............................................................................................... 11

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1 Krikorian v. Dep't of State, 2 984 F.2d 461 (D.C. Cir. 1993) ................................................................................................... 20 3 Lane v. Dep't of the Interior, 4 523 F.3d 1128 (9th Cir. 2008) ................................................................................................... 15 5 Larson v. Dep't of State, 6 565 F.3d 857 (D.C. Cir. 2009) ................................................................................................... 23 7 Lewis v. IRS, 8 823 F.2d 375 (9th Cir. 1987) ............................................................................................... 29, 31 9 Linder v. NSA,, 10 94 F.3d 693 (D.C. Cir. 1996) ..................................................................................................... 24 11 Lion Raisins v. Dep't of Agric., 12 354 F.3d 1072 (9th Cir. 2004) ............................................................................................. 15, 21 13 MacPherson v. IRS, 14 803 F.2d 479 (9th Cir. 1986) ............................................................................................... 30, 31 15 Maricopa Audubon Soc'y v. U.S. Forest Serv., 16 108 F.3d 1082 (9th Cir. 1997) ....................................................................................... 24, 25, 28 17 Maynard v. CIA, 18 986 F.2d 547 (1st Cir. 1993)...................................................................................................... 20 19 Meeropol v. Meese, 20 790 F.2d 942 (D.C. Cir. 1986) ................................................................................................... 13 21 Milner v. Dep't of Navy, 22 --- U.S. ----, 131 S. Ct. 1259 (2011) .................................................................................... 29, 30 23 Minier v. CIA, 24 88 F.3d 796 (9th Cir. 1996) ..................................................................................... 15, 17, 18, 22 25 Miscavige v. IRS, 26 2 F.3d 366 (11th Cir. 1993) ....................................................................................................... 15 27 Mobley v. Department of Justice, 28 870 F. Supp. 2d 61 (D.D.C. 2012) ............................................................................................. 21

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1 Mohamed v. Jeppesen, 2 614 F.3d 1070 (9th Cir. 2010) ................................................................................................... 19 3 Nat'l Sec. Archive Fund, Inc. v. CIA, 4 402 F. Supp. 2d 211 (D.D.C. 2005) ........................................................................................... 31 5 New York Times Co. v. DOD, 6 499 F. Supp. 2d 501 (S.D.N.Y. 2007)........................................................................................ 23 7 NLRB v. Robbins Tire & Rubber Co., 8 437 U.S. 214 (1978)................................................................................................................... 31 9 NLRB v. Sears, Roebuck & Co., 10 421 U.S. 132 (1975)............................................................................................................ passim 11 North Dartmouth Prop., Inc. v. Dep't of Hous. & Urban Dev., 12 984 F. Supp. 65 (D. Mass. 1997) ............................................................................................... 25 13 People for the Am. Way Fund. v. NSA,, 14 462 F. Supp. 2d 21 (D.D.C. 2006) ............................................................................................ 32 15 PHE, Inc. v. Dep't of Justice, 16 983 F.2d 248 (D.C. Cir. 1993) ................................................................................................... 29 17 Rockwell Int'l Corp. v. Dep't of Justice, 18 235 F.3d 598 (D.C. Cir. 2001) ................................................................................................... 26 19 Rosenfeld v. United States Dep't of Justice, 20 57 F.3d 803 (9th Cir. 1995) ................................................................................................. 29, 30 21 Russell v. Dep't of Air Force, 22 682 F.2d 1045 (D.C. Cir. 1982) ................................................................................................. 25 23 Safecard Servs., Inc. v. SEC, 24 926 F.2d 1197 (D.C. Cir. 1991) ................................................................................................. 16 25 Salisbury v. United States, 26 690 F.2d 966 (D.C. Cir. 1982) ................................................................................................... 17 27 Southam News v. INS, 28 674 F. Supp. 881 (D.D.C.1987) ................................................................................................. 27

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1 Spurlock v. FBI,

2 69 F.3d 1010 (9th Cir. 1995) ..................................................................................................... 15

3 Tax Analysts v. IRS,

4 294 F.3d 71 (D.C. Cir. 2002) ..................................................................................................... 32

5 United States v. Weber Aircraft Corp.,

6 465 U.S. 792 (1984)................................................................................................................... 24

7 Vaughn v. Rosen,

8 523 F.2d 1136 (D.C. Cir. 1975) ................................................................................................. 26

9 Weinberger v. Catholic Action of Haw.,

10 454 U.S. 139 (1981)............................................................................................................. 16, 17

11 Weiner v. FBI,

12 943 F.2d 972 (9th Cir. 1991) ..................................................................................................... 21

13 Wilkinson v. FBI,

14 633 F. Supp. 336 (C.D. Cal. 1986) ............................................................................................ 29

15

STATUTES

16 5 U.S.C. § 552....................................................................................................................... passim

17 13 U.S.C. § 8................................................................................................................................. 26

18 13 U.S.C. § 9................................................................................................................................. 26

19 13 U.S.C. § 214............................................................................................................................. 26

20 50 U.S.C. § 1801, et seq................................................................................................................ 10

21 50 U.S.C. § 1803........................................................................................................................... 10

22 50 U.S.C. § 1843........................................................................................................................... 20

23 50 U.S.C. § 1861....................................................................................................................... 8, 10

24 50 U.S.C. § 3605..................................................................................................................... 23, 24

25 50 U.S.C. § 403-1(i)...................................................................................................................... 23

26 RULES
27 Fed. R. Civ. P. 56 ...................................................................................................................... 8, 15
28

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1

NOTICE OF MOTION

2

PLEASE TAKE NOTICE that on June 3, 2014, at 2:00 p.m. in the United States

3 Courthouse at Oakland, California, defendant, the United States Department of Justice, by and

4 through undersigned counsel, will move this Court for summary judgment on all of plaintiff’s

5 claims in its Amended Complaint.

6

MOTION FOR SUMMARY JUDGMENT

7

Defendant, the United States Department of Justice, hereby moves for summary

8 judgment on all of the claims in plaintiffs’ Amended Complaint pursuant to Federal Rule of Civil

9 Procedure 56 and the Freedom of Information Act, 5 U.S.C. § 552, for the reasons more fully set

10 forth in the following Memorandum of Points and Authorities.

11

MEMORANDUM OF POINTS AND AUTHORITIES

12

PRELIMINARY STATEMENT

13

One of the greatest challenges the United States faces in combating international

14 terrorism and preventing potentially catastrophic terrorist attacks on our country is identifying

15 terrorist operatives and networks, particularly those operating within the United States. The

16 identification and exploitation of terrorist communications are critical tools in this effort.

17

In response to unauthorized disclosures about intelligence-gathering activities conducted

18 by the National Security Agency (“NSA”), the government has acknowledged the existence and

19 certain details of a counter-terrorism program to identify and exploit such terrorist

20 communications. Under Section 215 of the USA PATRIOT Act, 50 U.S.C. § 1861(a)(1), the

21 NSA obtains and may review, pursuant to orders of the Foreign Intelligence Surveillance Court

22 (“FISC”), bulk telephony metadata – business records created by telecommunications service

23 providers that include such information as the telephone numbers placing and receiving calls,

24 and the time and duration of those calls, but not their content.

25

Plaintiff in this Freedom of Information Act (“FOIA”) case, the Electronic Frontier

26 Foundation, seeks release of documents that contain a significant legal interpretation of the

27 government’s authority under Section 215. As a result of discretionary decisions by the Director

28 of National Intelligence (“DNI”) to acknowledge and declassify certain information concerning

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1 telephony metadata collection and other counter-terrorism activities, the government has released

2 to the public thousands of pages of declassified documents. Among those are over 1000 pages

3 produced to plaintiff and responsive to its FOIA request. Nonetheless, many operational details

4 related to specific applications of the intelligence sources and methods used by the United States

5 to carry out its authority under Section 215 remain classified today. That is because exposure of

6 those highly sensitive intelligence sources and methods to the United States’ adversaries would

7 risk serious or exceptionally grave damage to national security. As a result, defendant has

8 withheld some documents, and redacted information from others, responsive to plaintiff’s FOIA

9 request.

10

The information that the government continues to withhold is exempt from FOIA

11 disclosure because it is currently and properly classified, and therefore subject to FOIA

12 Exemption 1; because it is protected by statute, and therefore subject to FOIA Exemption 3;

13 because its release would interfere with an ongoing national security investigation, and therefore

14 is subject to Exemption 7(A); and/or because it concerns sensitive law enforcement methods and

15 techniques still employed today by the government in national security investigations, and

16 therefore is subject to FOIA Exemption 7(E). By agreement of the parties, their cross-summary

17 judgment motions will focus on withholding of such information in a sample of documents,

18 opinions and orders of the FISC. In addition, defendant has withheld a single legal advice

19 memorandum prepared by the Office of Legal Counsel (“OLC”) for the Department of

20 Commerce, which is protected by the deliberative process privilege and, therefore, subject to

21 FOIA Exemption 5.

22

As set forth below, and in the declarations of government officials submitted herewith,

23 the withheld documents or portions of documents over which the parties will cross-move for 24 summary judgment are properly exempt from disclosure under FOIA. The Court should, 25 therefore, grant summary judgment to defendant on plaintiff’s FOIA claim.

26

27

28

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1

BACKGROUND

2

A. Section 215 of the USA PATRIOT Act

3

Section 215 – originally enacted on October 26, 2001 as part of USA PATRIOT Act,

4 Pub. L. 107-56, 115 Stat. 272 (2001) – amends the Foreign Intelligence Surveillance Act, 50

5 U.S.C. § 1801, et seq. (“FISA”). Section 215 authorizes the FISC, an Article III court

6 composed of 11 appointed U.S. district judges, see 50 U.S.C. § 1803, to issue an order for the

7 “production of any tangible things (including books, records, papers, documents, and other

8 items) for an investigation [1] to obtain foreign intelligence information not concerning a

9 United States person or [2] to protect against international terrorism.” 50 U.S.C. § 1861(a)(1).

10 The investigation must be authorized and conducted under guidelines approved by the

11 Attorney General under Executive Order 12333 (or a successor thereto), id. § 1861(a)(2)(A),

12 (b)(2)(A), and the Government’s application must include, among other things, a statement of

13 facts showing that there are “reasonable grounds to believe that the tangible things sought are

14 relevant” to the investigation in question. Id. § 1861(b)(2)(A).

15

Information contained in the records or other items received in response to a Section

16 215 order “concerning any United States person may be used and disclosed by [the

17 Government] without the consent of [that] person only in accordance with . . . minimization

18 procedures,” adopted by the Attorney General and enumerated in the Government’s

19 application, that “minimize the retention, and prohibit the dissemination, of nonpublicly

20 available information concerning unconsenting United States persons consistent with the need

21 . . . to obtain, produce, and disseminate foreign intelligence information.” Id.

22 § 1861(b)(2)(B), (g)(2), (h). The FISC must find these requirements have been met before it

23 issues the requested order, which must direct that the minimization procedures set forth in the

24 application be followed. Id. § 1861(c)(1).

25

As initially enacted, Section 215 was set to expire on December 31, 2005. USA

26 PATRIOT Act, § 224. Congress subsequently reauthorized Section 215 for limited periods of

27 time on several occasions. See 50 U.S.C. § 1861 note. On May 26, 2011, Congress reauthorized

28

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1 Section 215 until June 1, 2015. See PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-

2 14, 125 Stat. 216 (2011).

3

Under the bulk telephony metadata collection program acknowledged by the DNI, the

4 FBI has since May 2006 obtained orders from the FISC under Section 215 directing certain

5 telecommunications service providers to produce to the NSA, on a daily basis, electronic copies

6 of “call detail records” containing “telephony metadata,” created by the recipient providers for

7 calls to, from, or within the United States. The NSA has then stored and queried the metadata for

8 counter-terrorism purposes. Under the FISC’s orders, the NSA’s authority to continue the

9 program expires after approximately 90 days and must be renewed. The FISC first authorized

10 the program in May 2006, and since then has renewed the program over 35 times, under orders

11 issued by at least 15 different FISC judges, most recently on the date of this filing, March 28, 12 2014.1

13

The President made changes to the program in 2014, and Congress is considering further

14 changes. On January 17, 2014, the President ordered a transition that would end the Section 215

15 bulk telephony metadata program as it then existed and establish a new mechanism to preserve

16 critical capabilities without the government holding bulk telephony metadata. See “FACT

17 SHEET: The Administration’s Proposal for Ending the Section 215 Bulk Telephony Metadata

18 Program,” available at http://www.whitehouse.gov/the-press-office/2014/03/27/fact-sheet-

19 administration-s-proposal-ending-section-215-bulk-telephony-m (last visited March 28, 2014).

20 Pursuant to the President’s direction, the Department of Justice asked the FISC to modify the

21 orders under which telephony metadata program is conducted to ensure that (1) absent an

22

23

1 See In re Application of the FBI for an Order Requiring the Production of Tangible

24

Things from [Redacted], Dkt. No. BR 13-109 (F.I.S.C. Aug. 29, 2013) (Exh. C) at 29; In re Application of the FBI for an Order Requiring the Production of Tangible Things from

25 [Redacted], Dkt. No. BR 13-158 (F.I.S.C. Oct. 11, 2013) (Exh. D) at 2-6. See also ACLU v.

Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013) (discussing and upholding legality of Section 215 26 bulk telephony metadata collection program) (appeal docketed). But see Klayman v. Obama,

27

957 F. Supp. 2d 1 (D.D.C. 2013) (granting preliminary injunction against application of program to two plaintiffs) (appeal docketed). As the Court is aware, the Section 215 telephony metadata

28 collection program is also the subject of a pending suit before another judge of this Court. See

First Unitarian Church of Los Angeles, et al. v. NSA, Case No. 3:13-cv-03287-JSW (N.D. Cal.).

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1 emergency situation, a FISC judge approves the specific identifiers (e.g., telephone numbers)

2 used to query the telephony metadata collected pursuant to the program, based on reasonable,

3 articulable suspicion that each identifier is associated with a specified foreign terrorist group; and

4 (2) the results of any query are limited to metadata within two “hops” (i.e., degrees of contact) of

5 the selection term being used, instead of three. Id. The FISC approved the government’s

6 requested modifications on February 5, 2014. Id. And this week, following a review by the

7 Department of Justice and the Office of the Director of National Intelligence, the President made

8 a further proposal to, with the passage of appropriate legislation, allow the government to end

9 bulk collection of telephony metadata records under Section 215, while ensuring that the

10 government has access to the information it needs to meet its national security requirements. Id.

11 As stated in the proposal, “[g]iven that this legislation will not be in place by March 28 and given

12 the importance of maintaining the capabilities in question, the President has directed DOJ to seek

13 from the FISC a 90-day reauthorization of the existing program, which includes the substantial

14 modifications in effect since February.” Id. The Department of Justice received such a 90-day

15 reauthorization on March 28, 2014.

16

B. Plaintiff’s FOIA Request and This Civil Action

17

Background concerning plaintiff’s original FOIA request and the government’s response

18 is set out in detail in defendant’s first Motion for Summary Judgment, which is incorporated

19 herein by reference. See ECF No. 40. Plaintiff’s FOIA request, as narrowed by the parties both

20 before and during litigation, seeks documents from defendant that contain significant legal

21 analysis or interpretations of Section 215. See id. See also Letter from Steven Y. Bressler to the

22 Court dated August 22, 2012, ECF No. 32, & Letter from Mark Rumold to the Court dated

23 August 24, 2012, ECF No. 33 (summary judgment motion pre-filing letters identifying

24 categories of documents that were included and excluded, respectively, from further litigation at

25 that time).

26

The posture of this action changed markedly in the summer and fall of 2013. On June 6,

27 2013, newspapers published articles and documents received from a former NSA contractor. See

28 Declaration of Jennifer L. Hudson (Exh. A) ¶ 15. This “unauthorized disclosure of TOP

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1 SECRET documents touched on some of the U.S. Government’s most sensitive national security

2 programs, including highly classified and on-going signals intelligence collection programs.” Id.

3 These unauthorized disclosures included previously classified information regarding Section

4 215. Id. ¶ 19. In response, the Director of National Intelligence (“DNI”) declassified certain

5 information regarding the collection of bulk telephony metadata pursuant to Section 215. Id.

6 ¶ 21. Defendant informed the Court of the DNI’s action, and the parties asked the Court to hold

7 their fully-briefed Cross Motions for Summary Judgment in abeyance while the government

8 determined what impact the change in classification would have on the records at issue in this

9 FOIA case. Id. ¶ 22; ECF Nos. 57, 59, 61.

10

In response to the unauthorized disclosures, on June 20, 2013, the President directed the

11 DNI to continue to review whether further information could be declassified regarding, inter

12 alia, activities authorized under Section 215. Hudson Decl. ¶ 23. Since that time, at presidential

13 direction and under guidance by the DNI, the U.S. Government has “engaged in a large-scale,

14 multi-agency review process” to “determine what further information concerning programs

15 under Section 215 and other surveillance programs could be declassified and released consistent

16 with the national security for the purpose of restoring public confidence and better explaining the

17 legal rationale and protections surrounding the programs.” Id. ¶ 24. The government

18 reprocessed documents responsive to plaintiff’s FOIA request as part of this broader review. Id.

19

As a result of this initiative, the DNI exercised his discretion under Executive Order

20 13526 to declassify and publicly release a number of documents pertaining to telephony

21 metadata collection under Section 215, including over 1,000 pages responsive to plaintiff’s FOIA

22 request as well as additional documents outside the scope of that request. Id. ¶ 26; see also

23 “Office of the DNI: IC On the Record,” available at ICOntheRecord.tumblr.com (last visited

24 March 28, 2014).

25

The parties recently proposed, and the Court agreed, that summary judgment motion

26 practice would “focus on a representative sample of withheld documents consisting of all

27 responsive Orders and Opinions of the FISC.” ECF Nos. 71, 72. The parties agree that the

28 Court’s determinations on the withholding of specific information from the representative

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1 sample will “count not simply for” the sample, but for similar information in “non-sample

2 documents still withheld.” Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991). See

3 Meeropol v. Meese, 790 F.2d 942, 958 (D.C. Cir. 1986) (such sampling allows a reviewing court

4 “to extrapolate its conclusions from the representative sample to the larger group of withheld

5 material”) (internal quotation omitted).

6

While the DNI declassified considerable information pertaining to Section 215,

7 operational details as to specific applications of the sources and methods used by the United

8 States pursuant to Section 215 remain classified. Hudson Decl. ¶ 27. Therefore, the information

9 redacted from documents produced to plaintiff is exempt from FOIA disclosure under various

10 statutory exemptions. In particular, as described below and in the public and classified

11 Declarations of Jennifer Hudson and the Declaration of Paul Colborn, defendant has withheld 12 information pursuant to FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C),2 and 7(E).

13

Accordingly, the United States Department of Justice now seeks summary judgment

14 concerning its withholding of exempt information under the FOIA.

15

ARGUMENT

16 I. 17

FOIA Requires the Disclosure Only of Non-Exempt Records, and This Court Lacks Authority to Compel the Disclosure of Exempt Records

18

The Freedom of Information Act was enacted to “pierce the veil of administrative secrecy

19 and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S.

20 352, 361 (1976) (internal quotation omitted). However, the public’s interest in government

21 information under FOIA is not absolute – “[i]t extends only to information that sheds light upon

22 the government’s performance of its duties.” Hale v. U.S. Dep’t of Justice, 973 F.2d 894, 898

23 (10th Cir. 1992), vacated on other grounds, 509 U.S. 918 (1993). “Congress recognized . . . that

24 public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166-67 (1985).

25

FOIA’s “basic purpose” reflects a “general philosophy of full agency disclosure unless

26 information is exempted under clearly delineated statutory language.” John Doe Agency v. John

27

28

2 Plaintiff has informed defendant that plaintiff does not challenge the withholdings

pursuant to Exemptions 6 and 7(C), which include the names of individuals.

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1 Doe Corp., 493 U.S. 146, 152 (1989) (quoting Rose, 425 U.S. at 360-361 (1976)) (other citation

2 omitted). FOIA is designed to achieve a “workable balance between the right of the public to

3 know and the need of the Government to keep information in confidence to the extent necessary

4 without permitting indiscriminate secrecy.” Id. (citation omitted).

5

Toward that end, FOIA incorporates “nine exemptions . . . which a government agency

6 may invoke to protect certain documents from public disclosure.” Minier v. CIA, 88 F.3d 796,

7 800 (9th Cir. 1996). Despite the “liberal congressional purpose” of FOIA, the Supreme Court

8 has recognized that the statutory exemptions are intended to have “meaningful reach and

9 application.” John Doe, 493 U.S. at 152. “A district court only has jurisdiction to compel an

10 agency to disclose improperly withheld agency records,” i.e., records that do “not fall within an

11 exemption.” Minier, 88 F.3d at 803 (emphasis in original). Thus, “[r]equiring an agency to

12 disclose exempt information is not authorized by FOIA.” Id. (quoting Spurlock v. FBI, 69 F.3d

13 1010, 1016 (9th Cir. 1995)).

14

FOIA actions are generally resolved through summary judgment motions pursuant to

15 Fed. R. Civ. P. 56. See Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) (“Generally, FOIA

16 cases should be handled on motions for summary judgment . . .”); Coastal Delivery Corp. v. U.S.

17 Customs Serv., 272 F. Supp. 2d 958, 962 (C.D. Cal. 2003) (same, citing id.). Under FOIA,

18 courts conduct de novo review to determine whether the government properly withheld records 19 under any of the FOIA=s nine statutory exemptions. 5 U.S.C. § 552(a)(4)(B). The government

20 bears the burden of justifying non-disclosure. Minier, 88 F.3d at 800. “The agency may meet its

21 burden by submitting a detailed affidavit showing that the information ‘logically falls within the

22 claimed exemptions.’” Id. (quoting in part Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992)).

23 Thus, “[c]ourts are permitted to rule on summary judgment in FOIA cases solely on the basis of 24 government affidavits describing the documents sought.” Lion Raisins v. Dep’t of Agriculture, 25 354 F.3d 1072, 1082 (9th Cir. 2004) (citation omitted). “If the affidavits contain reasonably 26 detailed descriptions of the documents and allege facts sufficient to establish an exemption, the 27 district court need look no further.” Lane v. Dep’t of the Interior, 523 F.3d 1128, 1135-36 (9th 28 Cir. 2008) (internal quotation omitted).

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1

Critically, although the government “may not rely upon conclusory and generalized

2 allegations of exemptions,” it “need not specify its objections in such detail as to compromise the

3 secrecy of the information.” See Church of Scientology of Cal. v. Dep’t of the Army, 611 F.2d

4 738, 742 (9th Cir. 1979) (internal quotation omitted). The Court must accord a presumption of

5 good faith to agency declarations submitted in support of claimed exemptions. Safecard Servs.,

6 Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

7

Moreover, courts afford deference to the agency=s declarations regarding withholding in

8 instances of national security – “a uniquely executive purview.” Ctr. for Nat’l Sec. Studies v.

9 U.S. Dep’t of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003). Although the court still conducts 10 de novo review of an agency=s actions, “de novo review in FOIA cases is not everywhere alike.”

11 Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987).

12 Because “courts have little expertise in either international diplomacy or counterintelligence

13 operations, [they] are in no position to dismiss the [agency’s] facially reasonable concerns” about

14 the harm that disclosure could cause to national security. Frugone v. CIA, 169 F.3d 772, 775

15 (D.C. Cir. 1999). As the Ninth Circuit has directed, for exemptions related to national security,

16 “the district court [is] required to accord ‘substantial weight’ to [the agency’s] affidavits” as long

17 as it is not “controverted by contrary evidence in the record or by evidence of [agency] bad

18 faith.” Hunt, 981 F.2d at 1119 (citation, internal quotation omitted).

19

The discussion below, the declarations, and the Vaughn index demonstrate that the

20 government has provided the proper bases for all of the challenged withholdings pursuant to 5

21 U.S.C. § 552(b). Because defendant has shown that it has properly withheld materials that are

22 exempt from disclosure, the government is entitled to summary judgment on plaintiff’s claims.

23 II. 24 25 26

The Defendants Have Properly Withheld Records that Are Exempt from Disclosure under FOIA
A. The Defendants Have Properly Withheld Records under FOIA Exemption 1
FOIA Exemption 1 protects records that are: “(A) specifically authorized under criteria

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

28 policy, and (B) are in fact properly classified pursuant to Executive order.” 5 U.S.C. § 552

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1 (b)(1); accord, e.g., Weinberger v. Catholic Action of Haw., 454 U.S. 139, 144 (1981). In other

2 words, under Exemption 1 material that has been properly classified is exempt from disclosure.

3 Id. at 144-45. For information to be properly classified pursuant to Exemption 1, it must meet

4 the requirements of Executive Order 13,526, “Classified National Security Information,” 75 Fed.

5 Reg. 707 (Dec. 29, 2009):

6

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

7

(2) the information is owned by, produced by or for, or is under the control of the United States Government;

8

(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and

9

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security,

10

which includes defense against transnational terrorism, and the original classification

authority is able to identify or describe the damage.

11 Id. § 1.1, 75 Fed. Reg. at 707; see Hudson Decl. ¶ 31. The Executive Order lists three

12 classification levels for national security information: top secret, secret, and confidential. Id.

13 § 1.2, 75 Fed. Reg. at 707-08. The government’s declarant, Jennifer L. Hudson, is an original

14 classification authority. See Hudson Decl. ¶ 3.

15

As noted, in reviewing classification determinations under Exemption 1, the courts have

16 repeatedly stressed that “substantial weight” must be accorded agency affidavits concerning

17 classified status of the records at issue, and that summary judgment is appropriate if the agency

18 submits a detailed affidavit showing that the information logically falls within the exemption.

19 See Minier, 88 F.3d at 800; see also Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)

20 (“summary judgment may be granted on the basis of agency affidavits if they contain reasonable

21 specificity of detail rather than merely conclusory statements, and if they are not called into

22 question by contradictory evidence in the record or by evidence of agency bad faith”).

23 Moreover, if “the agency’s statements meet this standard, the court is not to conduct a detailed

24 inquiry to decide whether it agrees with the agency’s opinions; to do so would violate the

25 principle of affording substantial weight to the expert opinion of the agency.” Id.; see also

26 Frugone, 169 F.3d at 775 (“Mindful that courts have little expertise in either international

27 diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially

28 reasonable concerns.”); Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982) (“‘The

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1 Executive departments responsible for national defense and foreign policy matters have unique

2 insights into what adverse [effects] might occur as a result of public disclosure of a particular

3 classified record.’”) (quoting S. Rep. No. 1200, 93rd Cong., 2d Sess. 12 (1974)).

4

The declarations and Vaughn index submitted herewith fully support application of

5 Exemption 1, as they describe “the justifications for nondisclosure with reasonably specific

6 detail,” Hunt, 981 F.2d at 1119, and “demonstrate that the information withheld logically falls

7 within the claimed exemption[].” Id.; see also Berman v. CIA, 501 F.3d 1136, 1140 (9th Cir.

8 2007) (same); Minier, 88 F.3d at 800 (same). See Hudson Decl. ¶¶ 30-119; Classified Hudson

9 Decl. Ms. Hudson’s declarations establish that the government has withheld classified

10 information that relates to intelligence activities, sources, and methods that, if disclosed, could be

11 expected to cause serious or exceptionally grave damage to national security. See Hudson Decl., 12 && 39-114; Classified Hudson Decl. See also Exec. Ord. No. 13,526 § 1.4(c) (information

13 pertaining to “intelligence activities (including covert action), intelligence sources or methods, or

14 cryptology” may be classified if its disclosure could reasonably be expected to damage national

15 security).

16

For example, the government has withheld information that would identify

17 telecommunications service providers who were ordered to produce business records containing

18 information about communications between telephone numbers. As Ms. Hudson explains in her

19 declaration, disclosing whether particular telecommunications companies assisted with NSA

20 intelligence activities could be expected to cause exceptionally grave damage to national security

21 by, inter alia, revealing to foreign adversaries which channels of communication may or may not

22 be secure and, thus, providing a roadmap to avoid U.S. government surveillance and find

23 alternative means to communicate in the course of plotting activity such as terrorist attacks. 24 Hudson Decl. ¶ 58-65, 84. Accord Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978) (rejecting 25 argument “that admission or denial of the fact of acquisition of [certain] communications … 26 would not reveal which circuits NSA has targeted” as “naïve”). The potentially grave damage to 27 national security of such disclosures, or other, further disclosures, is not reduced by the fact that 28 the government has now declassified the existence of the telephony metadata program under

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1 Section 215. As the Ninth Circuit has recognized, official confirmation of general information

2 about an intelligence program (such as its existence) does not eliminate the risk to national

3 security of compelling further disclosures of information about the program’s details. Mohamed

4 v. Jeppesen, 614 F.3d 1070, 1086, 1090 (9th Cir. 2010) (official acknowledgment of existence of

5 CIA extraordinary rendition program did not preclude details of program remaining state secrets

6 if details’ disclosure would risk harm to national security); Al-Haramain Islamic Found., Inc. v.

7 Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (concluding that even though the Government had

8 publicly acknowledged the existence of terrorist surveillance program, disclosing whether the

9 plaintiff had been surveilled would compromise national security). As discussed below, the

10 identities of telecommunications carriers served with Section 215 orders are also protected from 11 disclosure by FOIA Exemption 3.3

12

The government has also withheld specific and detailed statistical information that would

13 reveal the scope of bulk telephony metadata collection. Hudson Decl. ¶¶ 46-47, 51. As Ms.

14 Hudson explains, disclosing statistics such as the aggregate number of call detail records

15 collected by the NSA under the Section 215 bulk telephony metadata program would reveal the

16 types of communications that are safe from collection, as well as the scope of the program. Id.

17 ¶ 47. This would allow for possible deduction of the service providers subject to the relevant

18 FISC orders, which, like direct revelation of carriers’ identities, could allow adversaries of the

19 United States to devise ways to evade surveillance. Id. As discussed below, this material

20

21

3 Congress also recognized the need to protect the identities of telecommunications carriers alleged to have assisted the United States when Congress enacted provisions of the FISA

22 Amendments Act of 2008, Pub. L. 110-261, 122 Stat. 2467, Title II, § 201 (July 10, 2008), which

provided such carriers immunity from civil suit when certain conditions are met. In

23 recommending enactment of the legislation, the Senate Select Committee on Intelligence found

24

that “electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of private companies that operate the nation’s telecommunications system.”

25 S. Rep. 110-209, at 9 (2007) (accompanying S. 2248). The Report expressly stated that, in

connection with alleged assistance by telecommunications companies after the attacks of 26 September 11, 2001, “it would be inappropriate to disclose the names of the electronic

27

communication service providers from which assistance was sought” and that the “identities of persons or entities who provide assistance to the intelligence community are properly protected

28 as sources and methods of intelligence.” Id. Accord 50 U.S.C. § 403-1(i) (protecting intelligence

sources and methods from disclosure; discussed infra).

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1 concerning signals intelligence and NSA activities is also exempt from disclosure under FOIA

2 Exemption 3.

3

The government has also withheld certain details related to the collection of signals

4 intelligence with pen register/trap and trace devices pursuant to provisions of FISA separate from

5 Section 215, 50 U.S.C. §§ 1841-1846. Those details include the dates and docket numbers of

6 FISC orders or opinions. The DNI has publicly acknowledged that email metadata was collected

7 under a program reauthorized by the FISC approximately every 90 days from its inception until

8 its termination in 2011, except for a brief period. See Hudson Decl. ¶ 717. As Ms. Hudson

9 explains, revealing FISC docket numbers and dates of opinions or orders regarding this program

10 would permit adversaries of the United States to “deduce or infer the time period for which the

11 program was not operational, thereby determining which of their communications (email

12 metadata) may have escaped NSA collection and querying.” Id. As discussed below, this

13 information is also subject to Exemption 3.

14

The government has also withheld certain information pertaining to an operational

15 technique that the FISC authorized the government to use to query a database of telephony

16 metadata, using certain approved telephone identifiers. Hudson Decl. ¶¶ 98-103. As Ms.

17 Hudson explains, disclosure of this intelligence method would compromise NSA’s ability to

18 analyze bulk metadata which, in turn, would hamper the Intelligence Community’s

19 “identification of previously unknown persons of interest in support of anti-terrorism efforts” and

20 may allow adversaries of the United States to take countermeasures and degrade the

21 effectiveness of the NSA’s surveillance and analysis. Id. ¶ 102. As Ms. Hudson testifies, the

22 government cannot provide further public explanation of the classification of this intelligence

23 method without risking disclosure of the very information the government seeks to protect. Id. 24 ¶ 103. Should the Court require further information concerning this method, Ms. Hudson 25 provides it in her classified, ex parte submission to the Court. 4 As discussed below, 26 intelligence methods including this one are also protected from disclosure by FOIA Exemption 3.

27 4

In camera, ex parte review of classified declarations in FOIA cases is common and

28 appropriate where a more detailed public explanation cannot be provided without revealing the

very information that is sought to be protected. See, e.g., Krikorian v. Dep’t of State, 984 F.2d

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1

Finally, the government has also withheld in full, pursuant to Exemptions 1 and 3, five

2 FISC orders to protect intelligence sources and methods used by the government to gather

3 intelligence data. Hudson Decl. ¶¶ 105-110. The orders discuss specific techniques authorized

4 by the FISC, the details of the underlying investigations, and details concerning how the

5 government operationally and technically implements the FISC-authorized techniques, which the

6 government continues to employ. Id. ¶ 107. As Ms. Hudson explains, revelation of the

7 intelligence activities or methods described in the FISC orders would allow sophisticated targets

8 of national security investigations to divine what information the United States was collecting at

9 particular times, as well as gaps in surveillance, thus providing a roadmap for evading such

10 surveillance. Id. Details, such as docket numbers, would also allow targets to piece together a

11 fuller picture of the FISC-authorized surveillance in question, and therefore better devise

12 countermeasures. Id. ¶ 108. As Ms. Hudson explains, in combination with already-public

13 information this would permit the targets of national security investigations to thwart those

14 investigations, thereby risking serious damage to national security. Id. As discussed below, this

15 information is also protected from FOIA disclosure by Exemptions 3 and/or 7(E). Should the

16 Court require further information concerning this method, Ms. Hudson provides it in her

17 classified, ex parte submission to the Court.

18

The bases for Ms. Hudson’s conclusions that the information withheld pursuant to

19 Exemption 1 remains classified is well documented in both her public and classified, ex parte

20 461, 464-65 (D.C. Cir. 1993); Maynard v. CIA, 986 F.2d 547, 557 (1st Cir. 1993); Hayden v.

21

NSA, 608 F.2d 1381, 1385 (D.C. Cir. 1979); Greyshock v. U.S. Coast Guard, No. 96-15266, 107 F.3d 16, 1997 WL 51514, at *3 (9th Cir. Feb. 6, 1997) (unpublished) (“It is well settled that a

22 court may examine an agency declaration in camera and ex parte when release of the declaration would disclose the very information that the agency seeks to protect.” (citation omitted)). Of
23 course, the Court should “require the government to justify FOIA withholdings in as much detail

24

as possible on the public record before resorting to in camera review.” Lion Raisins, 354 F.3d at 1084 (requiring government to submit public declarations where it had previously submitted

25 none, but had relied solely on an in camera submission). However, the government has provided

“as detailed public affidavits and testimony as possible,” and so in camera review of classified 26 affidavits, if necessary, is “appropriate.” See Weiner v. FBI, 943 F.2d 972, 979 (9th Cir. 1991)

27

(internal quotation omitted). Thus, should the Court find the public declaration sufficient, it need not consider the classified submission, but if additional justification is needed, the Court may

28 then find it in the classified material. E.g., Mobley v. Dep’t of Justice, 870 F. Supp. 2d 61, 69

(D.D.C. 2012); Amnesty Int’l v. CIA, 728 F. Supp. 2d 479, 507-08 (S.D.N.Y. 2010).

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1 declarations, and her judgment that disclosure of that information would be harmful to national

2 security is entitled to “utmost deference” by the courts. Kasza v. Browner, 133 F.3d 1159, 1166

3 (9th Cir. 1998).

4

B. Defendant Has Properly Withheld Records Under FOIA Exemption 3

5 The government has properly invoked Exemption 3, which applies to records that are
6 “specifically exempted from disclosure” by other federal statutes “if that statute – establishes
7 particular criteria for withholding or refers to the particular types of material to be withheld.” 5
8 U.S.C. § 552(b)(3). In promulgating FOIA, Congress included Exemption 3 to recognize the
9 existence of collateral statutes that limit the disclosure of information held by the government,
10 and to incorporate such statutes within FOIA’s exemptions. See Balridge v. Shapiro, 455 U.S.
11 345, 352-53 (1982); Essential Info., Inc. v. U.S. Info. Agency, 134 F.3d 1165, 1166 (D.C. Cir.
12 1998). Under Exemption 3, “the sole issue for decision is the existence of a relevant statute and
13 the inclusion of withheld material within the statute’s coverage.” Fitzgibbon v. CIA, 911 F.2d
14 755, 761-62 (D.C. Cir. 1990). Exemption 3 also applies to every document for which the
15 government has asserted Exemption 1.
16 The government’s declarations support the “two-part inquiry [that] determines whether
17 Exemption 3 applies to a given case.” Minier, 88 F.3d at 800-01 (citing Sims, 471 U.S. at 167).
18 “First, a court must determine whether there is a statute within the scope of Exemption 3. Then,
19 it must determine whether the requested information falls within the scope of the statute.” Id. In
20 this case, the government has withheld responsive FISC opinions and orders interpreting or
21 discussing Section 215. See generally Hudson Decl.; id. ¶¶ 34-38. As Ms. Hudson explains in
22 her public declaration (and even more fully in her classified declaration), many of these materials
23 are properly withheld under one or more Exemption 3 statutes.
24 First, the government has withheld information that would reveal intelligence sources and
25 methods under the National Security Act of 1947, as amended by the Intelligence Reform and
26 Terrorism Prevention Act of 2004, 50 U.S.C. § 403-1(i), which protects intelligence sources and
27 methods from unauthorized disclosure. See, e.g., Hudson Decl. ¶¶ 50 (aggregate numbers of call
28 detail records that would risk disclosure of the identities of service providers who are intelligence

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1 sources), 65, 79, 83 (identities of service providers who are intelligence sources); 87 (NSA

2 operational technique is an intelligence method); 101 (intelligence method used to query

3 telephony metadata or call detail records); 106, 111-12. This statute indisputably qualifies as an

4 Exemption 3 statute. See ACLU v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011);

5 Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C. Cir. 2009); N.Y. Times Co. v. Dep’t of Justice,

6 872 F. Supp. 2d 309 (S.D.N.Y. 2012); N.Y. Times Co. v. DOD, 499 F. Supp. 2d 501, 512

7 (S.D.N.Y. 2007).

8

As the Supreme Court discussed in Sims, it is the duty of the responsible Executive

9 Branch officials, “not that of the judiciary, to weigh the variety of complex and subtle factors in

10 determining whether disclosure of information may lead to an unacceptable risk of

11 compromising” intelligence sources and methods. 471 U.S. at 180. The Court observed that, in

12 the National Security Act of 1947, Congress did not limit the scope of “intelligence sources and

13 methods” in any way. Id. at 169. Rather, it “simply and pointedly protected all sources of

14 intelligence that provide, or are engaged to provide, information the [responsible agency] needs

15 to perform its statutory duties with respect to [the relevant intelligence activities].” Id. at 169-

16 170. Applying this deferential standard, the government’s classified submission establishes that

17 the documents withheld pursuant to Exemption 3 are, in fact, protected from disclosure under

18 Exemption 3.

19

Second, some information was properly withheld under Section 6 of the National

20 Security Agency Act of 1959, codified at 50 U.S.C. § 3605, which provides that “[n]othing in

21 this Act or any other law . . . shall be construed to require the disclosure of the organization or

22 any function of the National Security Agency, or any information with respect to the activities

23 thereof . . . .” Ms. Hudson explains that various pieces of withheld information would, if not 24 redacted, disclose the organization, activities, and/or functions of the NSA. E.g., Hudson Decl. 25 ¶¶ 49 (aggregate number of call detail records collected by NSA), 62, 80-82 26 (telecommunications providers ordered to produce call detail records to NSA), 71 (dates and 27 scope of NSA collection of data using PR/TT devices); 87 (NSA operational technique); 101 28 (intelligence method used by NSA to query telephony metadata or call detail records). It is plain

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1 that information such as the name of an internal NSA organization, id. ¶ 52, the name of an NSA

2 intelligence analytic tool, id. ¶ 54, and the name of an NSA database that stores Section 215

3 metadata, id. ¶ 97, involve “the organization or any function of the [NSA], or . . . information

4 with respect to the activities thereof.” 50 U.S.C. § 3605. That is sufficient to invoke Exemption

5 3: “The protection afforded by section 6 is, by its very terms, absolute. If a document is covered

6 by section 6, NSA is entitled to withhold it regardless of the requesting party’s needs.” See

7 Linder v. NSA, 94 F.3d 693, 698 (D.C. Cir. 1996); see id. at 696 (“A specific showing of

8 potential harm to national security is irrelevant to the language of [section 6]. Congress has

9 already decided that disclosure of NSA activities is potentially harmful.”) (alterations omitted);

10 Hayden v. NSA, 608 F.2d 1381, 1390 (D.C. Cir. 1979).

11

C. Defendant Has Properly Withheld a Privileged Legal Advice

12

Memorandum under FOIA Exemption 5

Defendant has withheld a legal advice memorandum from the Office of Legal Counsel to 13

the Department of Commerce pursuant to Exemption 5, which shields from mandatory 14

disclosure “inter-agency or intra-agency memorandums or letters which would not be available 15

by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The 16

Supreme Court has clarified that Exemption 5 exempts “those documents, and only those 17

documents [that are] normally privileged in the civil discovery context.” NLRB v. Sears, 18

Roebuck & Co., 421 U.S. 132, 149 (1975); see also Carter v. Dep’t of Commerce, 307 F.3d 19

1084, 1088 (9th Cir. 2002). Exemption 5 thus protects from disclosure records that would be 20

privileged in civil litigation under doctrines such as the deliberative process privilege, the 21

attorney-client privilege, and the attorney work-product privilege. See United States v. Weber 22

Aircraft Corp., 465 U.S. 792, 800 (1984); see also Sears, 421 U.S. at 132, 149, 154; Maricopa 23

Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1082 (9th Cir. 1997). 24

The principal purpose of the deliberative process privilege is to “prevent injury to the 25

quality of agency decisions.” Sears, 421 U.S. at 151. Courts have recognized that this privilege 26

is an “ancient [one] . . . predicated on the recognition that the quality of administrative decision27

making would be seriously undermined if agencies were forced to operate in a fishbowl.” Dow 28

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1 Jones & Co. v. Dep’t of Justice, 917 F.2d 571, 573 (D.C. Cir. 1990) (internal quotations marks

2 and citation omitted). Thus, agencies may invoke the privilege: (1) to encourage open, frank

3 discussions on matters of policy between subordinates and superiors; (2) to protect against

4 premature disclosure of proposed policies before they are finally adopted; and (3) to protect

5 against public confusion that might result from disclosure of reasons and rationales that were not

6 in fact ultimately the grounds for an agency’s action. See Sears, 421 U.S. at 150-54; Assembly of

7 State of Cal. v. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992); Russell v. Dep’t of Air

8 Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982).

9

Documents covered by Exemption 5 include those “reflecting advisory opinions,

10 recommendations and deliberations comprising part of a process by which governmental

11 decisions and policies are formulated.” Sears, 421 U.S. at 150 (internal quotation omitted).

12

The deliberative process privilege rests on the obvious realization that officials

will not communicate candidly among themselves if each remark is a potential

13

item of discovery and front page news, and its object is to enhance the quality of

14

agency decisions by protecting open and frank discussion among those who make them within the Government.

15 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (internal

16 quotation marks and citations omitted).

17

The deliberative process privilege of Exemption 5 extends to those documents that are

18 both “predecisional” and “deliberative.” See Carter, 307 F.3d at 1089; Maricopa Audubon

19 Soc’y, 108 F.3d at 1093; Assembly of the State of Cal., 968 F.2d at 920. The Ninth Circuit has

20 “adopted the D.C. Circuit’s definition of these terms.” Maricopa Audubon Soc’y, 108 F.3d at

21 1093. A document is “predecisional” if it was “generated before the adoption of an agency

22 policy.” FTC v. Warner Comm’ns, 742 F.2d 1156, 1161 (9th Cir. 1984) (citing Coastal States 23 Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)); see also Carter, 307 F.3d at 24 1089 (a predecisional document is one prepared in order to assist an agency decisionmaker in 25 arriving at his decision); see also N. Dartmouth Prop., Inc. v. Dep’t of Hous. & Urban Dev., 984

26 F. Supp. 65, 69 (D. Mass. 1997) (emphasizing the importance of protecting the “ingredients” of

27 the agency’s decisionmaking process). A document is “deliberative” if it is “a direct part of the

28 deliberative process” in that it “makes recommendations or expresses opinions on legal or policy

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1 matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). “In practice, there is

2 some overlap” between these two terms. Assembly of State of Cal., 968 F.2d at 920.

3

Here, the government has withheld a single OLC legal advice memorandum pursuant to

4 Exemption 5 and the deliberative process privilege. That memorandum, dated January 4, 2010,

5 was prepared by OLC for the purpose of providing confidential legal advice to the Department of

6 Commerce regarding the interaction between disclosure provisions in the Patriot Act, as

7 amended, and prohibitions on disclosure in the Census Act, 13 U.S.C. §§ 8, 9, 214 (2006).

8 Declaration of Paul Colborn (Exh. B) ¶ 13. As Mr. Colborn explains,

9

[t]he Memorandum is pre-decisional because it was prepared by OLC to aid the

10

Department of Commerce in considering what actions to take, consistent with the

agency’s legal obligations, with respect to the potential disclosure of census information

11

to federal law enforcement or national security officers. The Memorandum is

12

deliberative because it constitutes legal advice from OLC to the Department of Commerce for use in the agency’s deliberations regarding how to comply with its legal

13

obligations regarding the confidentiality of census information.

14 Id. ¶ 15.5 The government has properly determined that these materials are subject to the

15 deliberative process privilege, and should be withheld as exempt from disclosure under FOIA

16 Exemption 5. As noted, the memorandum is deliberative in nature, such that its disclosure would

17 harm Executive Branch deliberative processes by chilling free and frank discussions on matters

18 of law and policy. Colborn Decl., && 13-21. “Protecting the confidentiality of OLC’s

19 memoranda conveying legal advice provided in the context of Executive Branch deliberations is

20 essential both to ensure that creative and sometimes controversial legal arguments and theories

21 may be examined candidly, effectively, and in writing, and to ensure that the President, his

22 advisers, and other Executive Branch officials continue to request and rely on frank legal advice

23

24

5

As Mr. Colborn explains in his declaration, the Census Memorandum was shared with

the U.S. Senate Select Committee on Intelligence in April 2011. Colborn Decl. ¶ 17 & Exh. D.

25 In a letter accompanying the memorandum, the Department of Justice “asked that ‘the

Committee maintain the confidentiality of this opinion, which provided confidential legal advice 26 to a client and has not been released publicly.’” Id. Disclosure to a congressional committee of

27

a document protected by the deliberative process privilege does not waive the privilege. See, e.g., Rockwell Int’l Corp. v. Dep’t of Justice, 235 F.3d 598, 604 (D.C. Cir. 2001). This is

28 particularly true when, as here, the disclosure is accompanied by a request that the congressional

committee preserve the document’s confidentiality. Id.

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1 from OLC on sensitive matters.” Id. & 16; see also Sears, 421 U.S. at 150-51 (“[T]hose who

2 expect public dissemination of their remarks may well temper candor with a concern for

3 appearances . . . to the detriment of the decisionmaking process.”) (internal quotation marks

4 omitted). Legal advice “fits exactly within the deliberative process rationale for Exemption 5.”

5 Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980).

6

Courts have affirmed this principle with specific reference to OLC legal advice

7 documents such as the one at issue here. Notably, the D.C. Circuit recently rejected EFF’s

8 contrary arguments and held that an OLC memorandum conveying legal advice regarding the

9 FBI’s authority to employ a certain investigative method is protected by the deliberative process

10 privilege. See Elec. Frontier Found. v. Dep’t of Justice, 739 F.3d 1, 10 (D.C. Cir. 2014) (reh’g 11 en banc denied per curiam March 11, 2014). 6 There, EFF contended that the OLC memorandum

12 at issue was not protected by the deliberative process privilege because it served as the “working

13 law” of the agency receiving the advice. Id. at 9. The court, however, concluded that the OLC

14 memorandum was not the “working law” of the client agency “[b]ecause OLC cannot speak

15 authoritatively on the FBI’s policy.” Id. Instead, the memorandum “amounts to advice offered

16 by OLC for consideration by officials of the FBI. Such a memorandum is not the law of an

17 agency unless the agency adopts it.” Id. at 8.

18

This is so even where the legal advice in question may be authoritative. See id. at

19 9 (“EFF argues that the OLC Opinion must be ‘working law’ because it is controlling

20 (insofar as agencies customarily follow OLC advice that they request), precedential, and

21 can be withdrawn. That the OLC Opinion bears these indicia of a binding legal decision

22 does not overcome the fact that OLC does not speak with authority on the FBI’s policy.”)

23 As another court explained, an argument to the contrary

24

25 6 See also, e.g., N.Y. Times Co., 2013 WL 20543, at *23 (holding “Exemption 5 plainly applies”

to, inter alia, OLC memo); Elec. Frontier Found. v. Dep’t of Justice, Civ. No. 11-939, 2012 WL 26 4319901, at *7 (D.D.C. Sept. 21, 2012) (OLC opinion protected by deliberative process privilege

27

because it constitutes advice used by agency decisionmakers); Southam News v. INS, 674 F. Supp. 881, 886 (D.D.C.1987) (OLC opinion letters “generated in the course of formulating

28 policies and positions that were being considered” fall within the deliberative process privilege)

(internal quotation omitted).

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1

is utterly without merit. It is nonsensical to state that legal opinions can never be protected by the deliberative process privilege because of their authoritative

2

nature. If legal opinions are disclosable simply because they are authoritative or

conclusive, this ‘would mean that virtually all legal advice OLC provides to the

3

executive branch would be subject to disclosure.’ This would significantly chill

4

the ability of the executive branch to obtain legal advice.”

5 Elec. Privacy Info. Ctr., 584 F. Supp. 2d at 75-76 (quoting CREW, 249 F.R.D. at 6).

6

Here, the Department of Commerce faced a decision on the formulation of a

7 policy on how to respond to potential requests from government officials for census

8 information. As Mr. Colborn explained in his declaration, “OLC does not purport to

9 make policy decisions, and in fact lacks authority to make such decisions. OLC’s legal

10 advice and analysis may inform the decision-making of Executive Branch officials on

11 matters of policy, but OLC’s legal advice does not dictate the policy choice to be made.”

12 Colborn Decl. ¶ 2. Rather, the memorandum “was prepared by OLC to aid the

13 Department of Commerce in considering what actions to take, consistent with the

14 agency’s legal obligations, with respect to the potential disclosure of census information

15 to federal law enforcement or national security officers.” Id. ¶ 15. Just as “OLC is not

16 authorized to make decisions about the FBI’s investigative policy,” EFF v. DOJ, 739

17 F.3d at 9, it lacks authority to make decisions about the Department of Commerce’s

18 policy with respect to disclosure of census information. OLC’s legal advice thus is not

19 the “working law” of the Department of Commerce; rather, OLC advice is an input to an

20 Executive Branch decisionmaking process whose protection is at the core of the

21 deliberative process privilege. See Sears, 421 U.S. at 150-51. Defendant therefore

22 properly withheld the OLC legal advice memorandum under FOIA Exemption 5.

23

D. The Government Has Properly Withheld Information Subject To Exemption

24

7(E)

25

Exemption 7(E) protects from disclosure information compiled for law enforcement

26 purposes where release of the information “would disclose techniques and procedures for law

27 enforcement investigations or prosecutions,” or where it would “disclose guidelines for law

28 enforcement investigations or prosecutions if such disclosure could reasonably be expected to

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1 risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Congress intended that Exemption

2 7(E) protect from disclosure techniques and procedures used to prevent and protect against

3 crimes as well as techniques and procedures used to investigate crimes after they have been

4 committed. See, e.g., PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250-51 (D.C. Cir. 1993)

5 (holding that portions of FBI manual describing patterns of violations, investigative techniques,

6 and sources of information available to investigators were protected by Exemption 7(E)). See

7 also Milner v. Dep’t of Navy, --- U.S. ----, 131 S. Ct. 1259, 1272-73 (2011) (Alito, J., concurring)

8 (stating that “Particularly in recent years, terrorism prevention and national security measures

9 have been recognized as vital to effective law enforcement efforts in our Nation[;]” also stating

10 that “‘law enforcement purposes’” under FOIA Exemption 7 “involve more than just

11 investigation and prosecution,” and that “security measures are critical to effective law

12 enforcement as we know it.”).

13

To determine if Exemption 7(E) applies, the Court must determine whether the records

14 were “compiled for law enforcement purposes” within the meaning of FOIA. Rosenfeld v.

15 United States Dep’t of Justice, 57 F.3d 803, 808 (9th Cir. 1995). To satisfy this threshold

16 requirement, the government need only demonstrate that the records were compiled pursuant to

17 authorized law enforcement duties of a law enforcement agency. See Lewis v. IRS, 823 F.2d

18 375, 379 (9th Cir. 1987); Wilkinson v. FBI, 633 F. Supp. 336, 343 (C.D. Cal. 1986); Church of

19 Scientology v. Dep’t of Army, 611 F.2d 738, 748 (9th Cir. 1979). Accord Milner, 131 S. Ct. at

20 1272 (law enforcement purposes within the meaning of Exemption 7 include national security

21 measures). The Ninth Circuit accords special deference to law enforcement agencies in an

22 Exemption 7 threshold determination. Binion v. Dep’t of Justice, 695 F.2d 1189, 1194 (9th Cir.

23 1983). Thus, an agency with a clear law enforcement mandate need only establish a “rational 24 nexus” between its law enforcement duties and the document for which Exemption 7 is claimed. 25 Id. at 1193-1194; Church of Scientology, 611 F.2d at 748; MacPherson v. IRS, 803 F.2d 479 (9th 26 Cir. 1986) (citing Binion, 695 F.2d at 1194). “The rational nexus test requires courts to accord a 27 degree of deference to a law enforcement agency’s decisions to investigate.” Rosenfeld, 57 F.3d 28 at 808. See also Keys v. Dep’t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987).

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1

Plaintiff requested only information related to Section 215, a tool used by the FBI (a

2 component of defendant which is indisputably a law enforcement agency) to obtain business

3 record information pursuant to a court order and as part of authorized national security

4 investigations, sometimes to be shared with the NSA. The rational nexus to “law enforcement

5 purposes” under FOIA is clear. See id.; Milner, 131 S. Ct. at 1272. Accordingly, plaintiff’s

6 request necessitates review under Exemption 7(E).

7

The government has asserted Exemption 7(E) to protect a certain confidential law

8 enforcement technique used by the Intelligence Community in national security investigations,

9 and details concerning that technique. See Hudson Decl. ¶¶ 115-117. Although Ms. Hudson

10 discusses the harm that could reasonably be expected to flow from public release of this

11 information, id. ¶ 117, such techniques and procedures are categorically protected by the

12 Exemption, without any need for inquiry into the harm that would result from their disclosure.

13 Fisher v. Dep’t of Justice, 772 F. Supp. 7, 12 n.9 (D.D.C. 1991), aff’d, 968 F.2d 92 (D.C. Cir.

14 1992) (unpublished table decision). See also ACLU Found. v. Dep’t of Justice, 833 F. Supp.

15 399, 407 (S.D.N.Y. 1993).

16 Accordingly, the Court should grant summary judgment for the government as to its

17 Exemption 7(E) withholdings.

18

E. The Government Has Properly Withheld Information Subject To Exemption

19

7(A)

20

The government has also properly withheld information relating to a pending national

21 security investigation pursuant to Exemption 7(A). That exemption authorizes withholding of

22 records compiled for law enforcement purposes, the disclosure of which “could reasonably be

23 expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). To satisfy its

24 burden justifying the applicability of this exemption, the government need only demonstrate that

25 (1) a law enforcement proceeding is pending or prospective, and (2) release of the information

26 could reasonably be expected to cause some articulable harm to the proceeding. See Robbins

27 Tire & Rubber Co., 437 U.S. at 224. See also, e.g., id. at 232 (“[T]he release of information in

28 investigatory files prior to the completion of an actual, contemplated enforcement proceeding

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1 was precisely the kind of interference that Congress continued to want to protect against.”). And

2 the applicability of Exemption 7(A) may be demonstrated generically, based on the category of

3 records involved. See Robbins Tire, 437 U.S. at 236; Lewis, 823 F.2d at 380 (Exemption 7(A) is

4 a categorical “general exclusion”).

5

Information subject to Exemption 7(A) is redacted from a FISC Supplemental Order in

6 docket B.R. 10-82 dated November 23, 2010. Hudson Decl. ¶¶ 93-96. As Ms. Hudson states, it

7 concerns a still-pending FBI counterterrorism investigation of a single subject , id. ¶ 93, and that

8 the redacted information could, if disclosed, reasonably be expected to interfere with the FBI’s

9 investigation and/or any eventual prosecution by alerting the target of the investigation, id. ¶ 95.

10 Should the Court require further detail than Ms. Hudson is able to provide on the public record, it

11 is contained in her classified declaration. See id.; Classified Hudson Decl.

12

F. Defendants Have Produced All Reasonably Segregable Portions of

Responsive Records 13

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

14

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

15

subsection.” 5 U.S.C. § 552(b)(9). This provision does not require disclosure of records in

16

which the non-exempt information that remains is meaningless. See Nat’l Sec. Archive Fund,

17

Inc. v. CIA, 402 F. Supp. 2d 211, 220-21 (D.D.C. 2005) (concluding that no reasonably

18

segregable information exists because “the non-exempt information would produce only

19

incomplete, fragmented, unintelligible sentences composed of isolated, meaningless words.”);

20

see also Klamath Siskiyou Wildlands Ctr. v. Dep’t of Interior, Civ. No. 07-325-CL, 2007 WL

21

4180685, at *8 (D. Or. Nov. 21, 2007) (“In cases where nonexempt material is inextricably

22

intertwined with exempt material and the deletion of the exempt material would leave only

23

meaningless words and phrases, the entire document is exempt.”). The defendant has reviewed

24

the withheld material and have disclosed all non-exempt information that reasonably could be

25

disclosed. See Hudson Decl. ¶¶ 118-122, Colborn Decl. ¶ 15. Accordingly, the Department of

26

Justice has produced all “reasonably segregable portion[s]” of the responsive records. 5 U.S.C.

27

§ 552(b).

28

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1

Nor is the legal analysis contained in the FISC opinions and orders at issue somehow per

2 se segregable, as plaintiff has argued before. Legal analysis protected by Exemption 1, 3, 5, or 7

3 (or any other Exemption) of the FOIA need not be produced to a requester. To find otherwise

4 would allow the forced disclosure of information despite a court’s own acknowledgement that

5 such disclosure would cause the national security harm and expose sensitive intelligence sources

6 and methods. However, the law is clear that “[t]he Court’s role with regard to Exemption 1 is

7 only to review the sufficiency and reasonableness of the agency’s explanation for its

8 classification decision, giving the agency’s determination the heightened deference it is due

9 under the law.” People for the Am. Way Fund. v. NSA, 462 F. Supp. 2d 21, 33 (D.D.C. 2006).

10 See also ACLU v. Dep’t of Justice, 265 F. Supp. 2d 20, 31 (D.D.C. 2003) (“That the public has a

11 significant and entirely legitimate desire for th[e] information simply does not, in an Exemption

12 1 case, alter the analysis.”). Similarly, “the sole issue for decision” on an Exemption 3 claim “is

13 the existence of a relevant statute and the inclusion of withheld material within the statute’s

14 coverage.” Fitzgibbon, 911 F.2d at 761-62. Cf. Sears, 421 U.S. at 161 (if a document

15 constitutes “working law” and therefore cannot be withheld under Exemption 5, it “may be

16 withheld only on the ground that it falls within the coverage of some exemption other than

17 Exemption 5.”).

18

The government has, therefore, produced all reasonably segregable portions of the

19 responsive records.

20

CONCLUSION

21

For all of the foregoing reasons, the Court should grant defendant’s Motion for Summary

22 Judgment and enter judgment for the Department of Justice.

23 Dated: March 28, 2014 24 25

Respectfully submitted,
STUART F. DELERY Assistant Attorney General

26

BY: /s/ Steven Y. Bressler

27

STEVEN Y. BRESSLER D.C. Bar #482492

U.S. Department of Justice, Civil Division

28

Case No. 4:11-cv-05221-YGR

Defendant’s Notice of Motion and Motion for Summary Judgment

25

 
 Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 1 of 10
ADRMOP,CLOSED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:11−cv−05221−YGR

Electronic Frontier Foundation v. Department of Justice Assigned to: Hon. Yvonne Gonzalez Rogers Case in other court: Ninth Circuit Court of Appeals, 14−17098 Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/26/2011 Date Terminated: 08/29/2014 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: Federal Question

Electronic Frontier Foundation

represented by Jennifer Ann Lynch Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415)436−9333 Fax: 415−436−9333 Email: jlynch@eff.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

V. Defendant United States Department of Justice

represented by Steven Yale Bressler U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305−0167 Fax: (202) 616−8470 Email: steven.bressler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/26/2011
10/26/2011 10/26/2011

# Docket Text
1 COMPLAINT for Injunctive Relief for Violation of the Freedom of Information Act against Department of Justice (Filing fee $350, receipt number 34611066219). Filed by Electronic Frontier Foundation. (cjl, COURT STAFF) (Filed on 10/26/2011) (Additional attachment(s) added on 11/1/2011: # 1 Civil Cover Sheet) (vlk, COURT STAFF). (Entered: 10/26/2011)
2 Summons Issued as to Department of Justice. (cjl, COURT STAFF) (Filed on 10/26/2011) (vlk, COURT STAFF). (Entered: 10/26/2011)
3 ADR SCHEDULING ORDER: Case Management Statement due by 2/1/2012. Case Management Conference set for 2/8/2012 01:30 PM in Courtroom 4, 3rd Floor, Oakland. (Attachments: # 1 Standing Order)(cjl, COURT STAFF) (Filed on 10/26/2011) (Entered: 10/26/2011)

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 2 of 10

10/27/2011 10/27/2011 10/27/2011 11/03/2011 11/03/2011 11/03/2011 11/04/2011 11/08/2011
11/09/2011
11/22/2011
12/05/2011 01/06/2012 01/18/2012
01/18/2012 01/18/2012 01/23/2012
01/27/2012 01/31/2012

4 SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. Department of Justice served on 10/26/2011, answer due 11/28/2011. as to US Attorneys Office (Lynch, Jennifer) (Filed on 10/27/2011) (Entered: 10/27/2011)
5 SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. as to DOJ (Lynch, Jennifer) (Filed on 10/27/2011) (Entered: 10/27/2011)
6 SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. as to Attorney General of US (Lynch, Jennifer) (Filed on 10/27/2011) (Entered: 10/27/2011)
7 NOTICE of Appearance by Steven Yale Bressler (Bressler, Steven) (Filed on 11/3/2011) (Entered: 11/03/2011)
8 Declination to Proceed Before a Magistrate Judge and Request for Reassignment to a United States District Judge filed by Department of Justice (Bressler, Steven) (Filed on 11/3/2011) Modified on 11/4/2011 (vlk, COURT STAFF). (Entered: 11/03/2011)
9 AMENDED COMPLAINT for Injunctive Relief for Violation of the Freedom of Information Act against Department of Justice. Filed byElectronic Frontier Foundation. (Lynch, Jennifer) (Filed on 11/3/2011) (Entered: 11/03/2011)
10 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (ig, COURT STAFF) (Filed on 11/4/2011) (Entered: 11/04/2011)
11 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Saundra Brown Armstrong for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to the case. Signed by the Executive Committee on November 8, 2011. (cjl, COURT STAFF) (Filed on 11/8/2011) (Entered: 11/08/2011)
12 CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASES: Case Management Conference set for 2/8/2012 03:00 PM., via Telephone. Signed by Judge Saundra Brown Armstrong, on 11/9/11. (lrc, COURT STAFF) (Filed on 11/9/2011) Modified on 11/9/2011 (jlm, COURT STAFF). (Entered: 11/09/2011)
13 STIPULATION Setting Deadline for Defendant to Respond to the First Amended Complaint, filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 11/22/2011) Modified on 11/23/2011 (jlm, COURT STAFF). (Entered: 11/22/2011)
14 ANSWER to Amended Complaint byDepartment of Justice. (Bressler, Steven) (Filed on 12/5/2011) (Entered: 12/05/2011)
15 NOTICE of Appearance of Mark Thomas Rumold as Counsel, filed by Electronic Frontier Foundation (Rumold, Mark) (Filed on 1/6/2012) Modified on 1/9/2012 (jlm, COURT STAFF). (Entered: 01/06/2012)
16 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Yvonne Gonzalez Rogers for all further proceedings. Judge Hon. Saundra Brown Armstrong no longer assigned to the case. Signed by Judge Gonzalez Rogers on 1/18/12. (vlk, COURT STAFF) (Filed on 1/18/2012) (Entered: 01/18/2012)
17 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Rumold, Mark) (Filed on 1/18/2012) (Entered: 01/18/2012)
18 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Rumold, Mark) (Filed on 1/18/2012) (Entered: 01/18/2012)
ADR Clerk Notice Setting ADR Phone Conference on 2/6/12 at 11:30 a.m. Pacific. The court will provide instructions for connecting to the call in a separate notice to the parties. (TEXT ONLY DOCKET ENTRY) (sgd, COURT STAFF) (Filed on 1/23/2012) (Entered: 01/23/2012)
19 JOINT CASE MANAGEMENT STATEMENT filed by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 1/27/2012) Modified on 1/30/2012 (jlm, COURT STAFF). (Entered: 01/27/2012)
20 ORDER Case Management Conference set for Monday, 3/12/2012 02:00 PM before Judge Yvonne Gonzalez Rogers in a designated courtroom in the Oakland Courthouse. Signed by Judge Yvonne Gonzalez Rogers on 1/31/2012. Parties are ordered to submit an updated Joint Case Management Statement and a joint discovery plan no less than

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 3 of 10

02/06/2012 02/10/2012 02/16/2012 02/22/2012 02/23/2012
03/12/2012 03/15/2012 08/01/2012 08/02/2012 08/06/2012 08/06/2012 08/07/2012
08/22/2012
08/24/2012 08/29/2012

14 days prior to the conference.(fs, COURT STAFF) (Filed on 1/31/2012) (Entered: 02/01/2012)
ADR Remark: ADR Phone Conference held by GDB on 2/6/12. (sgd, COURT STAFF) (Filed on 2/6/2012) (Entered: 02/06/2012)
21 STIPULATION WITH PROPOSED ORDER Regarding Processing of FOIA Requests, filed by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 2/10/2012) Modified on 2/13/2012 (jlm, COURT STAFF). (Entered: 02/10/2012)
22 ORDER GRANTING STIPULATION REGARDING PROCESSING OF FOIA REQUESTS by Judge Yvonne Gonzalez Rogers granting 21 Stipulation. (fs, COURT STAFF) (Filed on 2/16/2012) (Entered: 02/16/2012)
23 STIPULATION WITH PROPOSED ORDER to Postpone Initial Case Management Conference re 20 Order, filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 2/22/2012) Modified on 2/23/2012 (jlm, COURT STAFF). (Entered: 02/22/2012)
24 ORDER RESETTING CASE MANAGEMENT CONFERENCE Initial Case Management Conference set for 3/12/2012 is VACATED. Case Management Conference is now set for 8/20/2012 02:00 PM.. Signed by Judge Yvonne Gonzalez Rogers on 2/23/2012. (fs, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
25 STIPULATION WITH PROPOSED ORDER to Modify FOIA Processing Schedule re 22 Order on Stipulation filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 3/12/2012) Modified on 3/13/2012 (jlm, COURT STAFF). (Entered: 03/12/2012)
26 ORDER by Judge Yvonne Gonzalez Rogers granting 25 Stipulation (fs, COURT STAFF) (Filed on 3/15/2012) (Entered: 03/15/2012)
27 JOINT STATUS REPORT, filed by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 8/1/2012) Modified on 8/2/2012 (jlm, COURT STAFF). (Entered: 08/01/2012)
28 STIPULATION WITH PROPOSED ORDER Requesting Postponement of the Initial Case Management Conference Currently Set for August 20, 2012, filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 8/2/2012) Modified on 8/3/2012 (jlm, COURT STAFF). (Entered: 08/02/2012)
29 JOINT CASE MANAGEMENT STATEMENT, filed by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 8/6/2012) Modified on 8/7/2012 (jlm, COURT STAFF). (Entered: 08/06/2012)
30 Certificate of Interested Entities by Electronic Frontier Foundation (Rumold, Mark) (Filed on 8/6/2012) (Entered: 08/06/2012)
31 ORDER by Judge Yvonne Gonzalez Rogers GRANTING 28 Stipulation to Continue Case Management Conference. The 8/20/2012 Case Management Conference is VACATED. Compliance Hearing is set for Friday, 8/31/12 at 9:01am. Signed by Judge Yvonne Gonzalez Rogers, on 08/07/12 (fs, COURT STAFF) (Filed on 8/7/2012) Modified on 8/8/2012 (jlm, COURT STAFF). (Entered: 08/07/2012)
32 Letter to Judge Yvonne Gonzalez Rogers re request for a pre−filing conference pursuant to Paragraph 9(a) of the Court's Standing Order In Civil Cases, from Steven Y. Bressler, counsel for the Department of Justice, dated 08/22/12 . (Bressler, Steven) (Filed on 8/22/2012) Modified on 8/23/2012 (jlm, COURT STAFF). (Entered: 08/22/2012)
33 Letter from Mark Rumold, counsel for Plaintiff, to Judge Yvonne Gonzalez Rogers re: Request for a Pre−Filing Conference. (Rumold, Mark) (Filed on 8/24/2012) (Entered: 08/24/2012)
34 ORDER RE MOTION AND CROSS−MOTION FOR SUMMARY JUDGMENT. The Compliance Hearing set for Friday, August 31, 2012 is VACATED. Signed by Judge Yvonne Gonzalez Rogers on 8/29/12. (fs, COURT STAFF) (Filed on 8/29/2012)

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 4 of 10

10/23/2012 10/24/2012 10/24/2012 11/02/2012 11/05/2012 11/05/2012 11/15/2012 11/16/2012
12/14/2012
12/14/2012
12/14/2012 01/04/2013

(Entered: 08/29/2012)
35 STIPULATION WITH PROPOSED ORDER to Set Summary Judgment Briefing Schedule and Hearing Date, filed by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 10/23/2012) Modified on 10/24/2012 (jlm, COURT STAFF). (Entered: 10/23/2012)
36 ORDER by Judge Yvonne Gonzalez Rogers granting 35 Stipulation to set Summary Judgment Briefing and Hearing (fs, COURT STAFF) (Filed on 10/24/2012) (Entered: 10/25/2012)
Set/Reset Deadlines as to Motion Filed 11/9/12;Responses and Cross Motion due by 12/7/2012. Replies and Oppositions due by 12/27/2012; Plaintiff's Reply filed 1/11/13; Motion Hearing set for 2/12/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 10/24/2012) (Entered: 10/25/2012)
37 STIPULATION WITH [PROPOSED] ORDER re 36 to Extend Defendant's Deadline to File Motion for Summary Judgment by One Week filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 11/2/2012) Modified on 11/5/2012 (cjl, COURT STAFF). (Entered: 11/02/2012)
38 ORDER by Judge Yvonne Gonzalez Rogers granting 37 Stipulation re Summary Judgment [AS MODIFIED BY THE COURT] (fs, COURT STAFF) (Filed on 11/5/2012) (Entered: 11/05/2012)
Set/Reset Deadlines as to Defendant's Motion for Summary Judgment filed 11/16/12; Plaintiff's Cross−Motion and Opposition due by 12/14/2012. Defendant's Opposition and Replies due by 1/4/2013. Plaintiff's Reply filed 1/18/13. Motions Hearing set for 2/19/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 11/5/2012) (Entered: 11/05/2012)
39 Letter to Judge Yvonne Gonzalez Rogers re release of classified information, from Steven Y. Bressler, dated 11/15/12. (Bressler, Steven) (Filed on 11/15/2012) Modified on 11/16/2012 (jlm, COURT STAFF). (Entered: 11/15/2012)
40 MOTION for Summary Judgment filed by Department of Justice. Motion Hearing set for 2/19/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 12/14/2012. Replies due by 1/4/2013. (Attachments: # 1 Declaration Unclassified Declaration of Mark A. Bradley, # 2 Declaration Declaration of Paul Colborn (and exhibits thereto), # 3 Declaration Declaration of David M. Hardy, # 4 Exhibit Exhibits to Declaration of David M. Hardy, # 5 Supporting Separate Statement of Material Facts, # 6 Proposed Order)(Bressler, Steven) (Filed on 11/16/2012) (Entered: 11/16/2012)
41 Cross MOTION and [Proposed] Order for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Electronic Frontier Foundation. Motion Hearing set for 2/19/2013 02:00 PM before Hon. Yvonne Gonzalez Rogers. Responses due by 1/4/2013. Replies due by 1/18/2013. (Attachments: # 1 Proposed Order)(Rumold, Mark) (Filed on 12/14/2012) Modified on 12/17/2012 (cjl, COURT STAFF). (Entered: 12/14/2012)
42 Declaration of Mark Rumold in Support of 41 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Related document(s) 41 ) (Rumold, Mark) (Filed on 12/14/2012) (Entered: 12/14/2012)
43 Statement re 41 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment of Material Facts by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 12/14/2012) (Entered: 12/14/2012)
44 Memorandum in Opposition re 41 Cross Motion for Summary Judgment, 40 Motion for Summary Judgment, filed by Department of Justice. (Attachments: # 1 Declaration Supplemental Declaration of Mark A. Bradley, # 2 Declaration of Steven Y. Bressler, # 3 Exhibit Defendant's Response to Plaintiff's Separate Statement of Additional Material Facts, # 4 Proposed Order)(Bressler, Steven) (Filed on 1/4/2013) Modified on

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 5 of 10

01/18/2013 01/28/2013
01/31/2013
03/12/2013
03/26/2013 04/06/2013 04/18/2013 04/25/2013 05/03/2013 05/08/2013 05/08/2013 05/09/2013 05/23/2013 06/07/2013

1/7/2013 (jlm, COURT STAFF). (Entered: 01/04/2013)
45 Reply Memorandum re 41 Cross Motion for Summary Judgment, filed by Electronic Frontier Foundation. (Attachments: # 1 Declaration (Supplemental) of Mark Rumold)(Rumold, Mark) (Filed on 1/18/2013) Modified on 1/22/2013 (jlm, COURT STAFF). (Entered: 01/18/2013)
46 STIPULATION WITH PROPOSED ORDER Requesting to Reschedule Hearing on Cross−Motions for Summary Judgment re 41 Cross Motion for Summary Judgment, 40 Motion for Summary Judgment, filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 1/28/2013) Modified on 1/29/2013 (jlm, COURT STAFF). (Entered: 01/28/2013)
47 ORDER GRANTING STIPULATED REQUEST TO RESCHEDULE HEARING ON CROSS−MOTIONS FOR SUMMARY JUDGMENT AS MODIFIED BY THE COURT re 46 Stipulation. Motion Hearing set for 3/12/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers.. Signed by Judge Yvonne Gonzalez Rogers on 1/31/2013. (fs, COURT STAFF) (Filed on 1/31/2013) Modified on 2/1/2013 (jlm, COURT STAFF). (Entered: 01/31/2013)
48 Minute Entry: Hearing held on 3/12/2013 before Judge Yvonne Gonzalez Rogers (Date Filed: 3/12/2013) Hearings re 41 Cross−Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, 40 Motion for Summary Judgment filed by the Department of Justice is VACATED until further notice from the Court. (Court Reporter: Raynee Mercado.) (fs, COURT STAFF) (Date Filed: 3/12/2013) Modified on 3/14/2013 (jlm, COURT STAFF). (Entered: 03/13/2013)
49 ORDER RE: FURTHER SUBMISSION ON CROSS−MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Yvonne Gonzalez Rogers on 3/26/13. (fs, COURT STAFF) (Filed on 3/26/2013) (Entered: 03/26/2013)
50 NOTICE of Change of Address, filed by Electronic Frontier Foundation (Lynch, Jennifer) (Filed on 4/6/2013) Modified on 4/8/2013 (jlm, COURT STAFF). (Entered: 04/06/2013)
51 RESPONSE to re 49 Order, 40 MOTION for Summary Judgment by Department of Justice. (Attachments: # 1 Declaration Supplemental Declaration of Mark A. Bradley and Unclassified Vaughn Index)(Bressler, Steven) (Filed on 4/18/2013) (Entered: 04/18/2013)
52 ORDER DIRECTING PLAINTIFF TO SUBMIT RESPONSE TO DEFENDANT'S FURTHER SUBMISSION FILED APRIL 18, 2013. Signed by Judge Yvonne Gonzalez Rogers on 4/25/13. (fs, COURT STAFF) (Filed on 4/25/2013) (Entered: 04/25/2013)
53 STIPULATION WITH PROPOSED ORDER to Enlarge by One Week Defendant's Time to File a Reply re 52 Order filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 5/3/2013) Modified on 5/7/2013 (jlm, COURT STAFF). (Entered: 05/03/2013)
54 ORDER by Judge Yvonne Gonzalez Rogers granting 53 Stipulation to Enlarge Defendant's Time to File a Reply Brief. (fs, COURT STAFF) (Filed on 5/8/2013) (Entered: 05/08/2013)
Set/Reset Deadlines as to 40 Motion for Summary Judgment. Replies due by 5/23/2013, per 54 Order. (jlm, COURT STAFF) (Filed on 5/8/2013) (Entered: 05/09/2013)
55 RESPONSE to re 51 defendant's further submissions by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 5/9/2013) Modified on 5/10/2013 (cpS, COURT STAFF). (Entered: 05/09/2013)
56 Reply Memorandum in RESPONSE to 49 Order, 52 Order, filed by Department of Justice. (Bressler, Steven) (Filed on 5/23/2013) Modified on 5/24/2013 (jlm, COURT STAFF). (Entered: 05/23/2013)
57 ***ERRONEOUS ENTRY, PLEASE SEE DOCUMENT NO. 59 ***

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 6 of 10

06/10/2013 06/10/2013
06/11/2013 07/12/2013 07/19/2013 09/04/2013 09/06/2013 10/01/2013 10/01/2013 10/17/2013 12/23/2013 01/06/2014
02/03/2014 02/03/2014

NOTICE and Request That Court Hold the Cross−Motions for Summary Judgment in Abeyance, filed by Department of Justice (Bressler, Steven) (Filed on 6/7/2013) Modified on 6/10/2013 (jlm, COURT STAFF). Modified on 6/11/2013 (jlm, COURT STAFF). (Entered: 06/07/2013)
58 CLERKS NOTICE OF DEFICIENCY RE 57 (jlm, COURT STAFF) (Filed on 6/10/2013) (Entered: 06/10/2013)
59 STIPULATION WITH PROPOSED ORDER Requesting the Court Hold in Abeyance the Parties' Cross−Motions for Summary Judgment re 41 Cross−Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, 40 Motion for Summary Judgment, filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 6/10/2013) Modified on 6/11/2013 (jlm, COURT STAFF). (Entered: 06/10/2013)
60 ORDER by Judge Yvonne Gonzalez Rogers granting 59 Stipulation that the Court hold the Cross−Motions for Summary Judgment in Abeyance. Status report to be filed by 7/12/2013. (fs, COURT STAFF) (Filed on 6/11/2013) (Entered: 06/11/2013)
61 STATUS REPORT (Joint) by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 7/12/2013) (Entered: 07/12/2013)
62 ORDER RE: HOLDING CROSS−MOTIONS FOR SUMMARY JUDGMENT IN ABEYANCE. Joint Statement to be filed by 9/4/2013. Signed by Judge Yvonne Gonzalez Rogers on 7/19/13. (fs, COURT STAFF) (Filed on 7/19/2013) (Entered: 07/19/2013)
63 STATUS REPORT by Department of Justice. (Bressler, Steven) (Filed on 9/4/2013) (Entered: 09/04/2013)
64 ORDER by Judge Yvonne Gonzalez Rogers denying without prejudice 40 Motion for Summary Judgment; denying without prejudice 41 Motion for Summary Judgment and Directing Parties to Sumbit Further Status Report. (fs, COURT STAFF) (Filed on 9/6/2013) (Entered: 09/06/2013)
65 Consent MOTION to Stay Litigation in Light of the Lapse in Federal Government Appropriations re 64 Order on Motion for Summary Judgment, filed by Department of Justice. Responses due by 10/7/2013. (Bressler, Steven) (Filed on 10/1/2013) Modified on 10/2/2013 (jlmS, COURT STAFF). (Entered: 10/01/2013)
66 ORDER by Judge Yvonne Gonzalez Rogers granting 65 Unopposed Administrative Motion to Stay Litigation and Tolling of Deadlines in Light of Lapse in Federal Government Appropriations. (fs, COURT STAFF) (Filed on 10/1/2013) (Entered: 10/01/2013)
67 NOTICE re Appropriation of Funds for the Department of Justice, as to 66 Order on Motion to Stay, filed by Department of Justice (Bressler, Steven) (Filed on 10/17/2013) Modified on 10/18/2013 (jlmS, COURT STAFF). (Entered: 10/17/2013)
68 JOINT STATUS REPORT, filed by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 12/23/2013) Modified on 12/26/2013 (jlmS, COURT STAFF). (Entered: 12/23/2013)
69 ORDER RE: Joint Status Conference Statement filed by 2/3/2014. Status Conference set for Monday, 2/10/2014 01:30 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 1/6/2014. (fs, COURT STAFF) (Filed on 1/6/2014) Modified on 1/7/2014 (jlmS, COURT STAFF). (Entered: 01/06/2014)
70 JOINT STATUS REPORT AND PROPOSED SCHEDULE FOR FURTHER PROCEEDINGS, filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 2/3/2014) Modified on 2/4/2014 (jlmS, COURT STAFF). (Entered: 02/03/2014)
71 STIPULATION WITH PROPOSED ORDER to Set Briefing Schedule and to Reschedule or Vacate Case Management Conference re 69 Order, filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 2/3/2014)

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 7 of 10

02/06/2014 03/03/2014
03/03/2014
03/13/2014 03/18/2014 03/28/2014
04/01/2014 04/18/2014 05/02/2014 05/16/2014

Modified on 2/4/2014 (jlmS, COURT STAFF). (Entered: 02/03/2014)
72 ORDER by Judge Yvonne Gonzalez Rogers granting 71 Stipulation to Set Briefing Schedule and to Vacate Case Management Conference. (fs, COURT STAFF) (Filed on 2/6/2014) (Entered: 02/06/2014)
73 ATTACHMENT INCORRECT. SEE DKT. NO. 74 FOR CORRECT ENTRY AND ATTACHMENT
Minute Entry: Pre−Filing Conference re Motions for Summary Judgment HELD (Date Filed: 3/3/2014). Defendant to file motion for summary judgment and opening brief by 3/21/14; Plaintiff's cross−motion for summary judgment and opening brief filed 4/18/14; Defendant's cross−opposition and reply filed *** 5/2/14 ***; Plaintiff's reply filed 5/16/14. Motion Hearing set for Tuesday, 6/3/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (Court Reporter Raynee Mercado.) (fs, COURT STAFF) (Date Filed: 3/3/2014) Modified on 3/10/2014 (fs, COURT STAFF). (Entered: 03/07/2014)
74 AMENDED Minute Entry: [amended to reflect correct date for Defendant's cross−opposition and reply is 5/2/14] Pre−Filing Conference re Motions for Summary Judgment HELD (Date Filed: 3/3/2014). Defendant to file motion for summary judgment and opening brief by 3/21/14; Plaintiff's cross−motion for summary judgment and opening brief filed 4/18/14; Defendant's cross−opposition and reply filed ***5/2/14; Plaintiff's reply filed 5/16/14. Motion Hearing set for Tuesday, 6/3/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (Court Reporter Raynee Mercado.) (fs, COURT STAFF) (Date Filed: 3/3/2014) (Entered: 03/10/2014)
75 STIPULATION WITH PROPOSED ORDER to Extend Deadline for Defendant's Summary Judgment Motion by One Week filed by Department of Justice, Electronic Frontier Foundation. (Bressler, Steven) (Filed on 3/13/2014) Modified on 3/14/2014 (cpS, COURT STAFF). (Entered: 03/13/2014)
76 ORDER by Judge Yvonne Gonzalez Rogers granting 75 Stipulation to Extend Deadline for Summary Judgment Motion by one week. (fs, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)
77 MOTION for Summary Judgment filed by Department of Justice. Motion Hearing set for 6/3/2014 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 4/18/2014. Replies due by 5/2/2014. (Attachments: # 1 Declaration Exh. A Declaration of Jennifer L. Hudson, # 2 Vaughn Index, # 3 Supporting Separate Statement of Material Facts, # 4 Proposed Order, # 5 Declaration Exh. B Declaration of Paul P. Colborn (with exhibits), # 6 Exhibit Exh. C Aug. 29, 2013 FISC Opinion, # 7 Exhibit Exh. D Oct. 11, 2013 FISC Opinion)(Bressler, Steven) (Filed on 3/28/2014) (Entered: 03/28/2014)
78 NOTICE of Lodging Classified Declaration re 39 Letter, 77 Motion for Summary Judgment, filed by Department of Justice (Bressler, Steven) (Filed on 4/1/2014) Modified on 4/2/2014 (jlmS, COURT STAFF). (Entered: 04/01/2014)
79 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Electronic Frontier Foundation. Motion Hearing set for 6/3/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 5/2/2014. Replies due by 5/16/2014. (Attachments: # 1 Separate Statement of Material Facts, # 2 Declaration of Mark Rumold with Exhibits, # 3 Proposed Order)(Rumold, Mark) (Filed on 4/18/2014) (Entered: 04/18/2014)
80 RESPONSE (re 77 MOTION for Summary Judgment , 79 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment ) filed byDepartment of Justice. (Attachments: # 1 Exhibit Unclassified, Redacted November 2012 Declaration of Diane M. Janosek, # 2 Exhibit Declaration of Mark W. Ewing, # 3 Exhibit Notice of Lodging of Classified Declaration, # 4 Consolidated Statements of Material Facts)(Bressler, Steven) (Filed on 5/2/2014) (Entered: 05/02/2014)
81 REPLY (re 79 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment ) filed byElectronic Frontier Foundation.

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 8 of 10

06/03/2014
06/12/2014
06/13/2014 06/13/2014 06/16/2014 07/18/2014
07/24/2014 07/25/2014 08/11/2014
08/28/2014 08/29/2014 09/02/2014 09/03/2014

(Attachments: # 1 Declaration of Mark Rumold)(Rumold, Mark) (Filed on 5/16/2014) (Entered: 05/16/2014)
82 Minute Entry: Motion Hearing held and submitted on 6/3/2014 before Yvonne Gonzalez Rogers (Date Filed: 6/3/2014) re 77 MOTION for Summary Judgment filed by Department of Justice, 79 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Electronic Frontier Foundation. (Court Reporter Diane Skillman.) (fs, COURT STAFF) (Date Filed: 6/3/2014) (Entered: 06/03/2014)
83
***FILED IN ERROR, SEE DOCUMENT # 84 ***
NOTICE by Electronic Frontier Foundation of Recent Order and Notice of Clarification (Rumold, Mark) (Filed on 6/12/2014) Modified on 6/16/2014 (cpS, COURT STAFF). (Entered: 06/12/2014)
84 NOTICE by Electronic Frontier Foundation of Recent Order and Notice of Clarification: CORRECTION OF DOCKET # 83 (Rumold, Mark) (Filed on 6/13/2014) (Entered: 06/13/2014)
85 ORDER RE: PRODUCTION OF DOCUMENTS FOR IN CAMERA REVIEW. Signed by Judge Yvonne Gonzalez Rogers on 6/13/14. (fs, COURT STAFF) (Filed on 6/13/2014) (Entered: 06/13/2014)
86 Notice of Lodging Classified Documents for Court's Review In Camera re 85 Order by Department of Justice (Bressler, Steven) (Filed on 6/16/2014) Modified on 6/17/2014 (cpS, COURT STAFF). (Entered: 06/16/2014)
87 NOTICE of Recent Authority by Department of Justice re 84 Notice (Other), 77 MOTION for Summary Judgment , 79 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by Department of Justice (Attachments: # 1 Exhibit Memorandum Opinion in Electronic Frontier Found. v. Dep't of Justice, No.12cv1441−ABJ (D.D.C. July 18, 2014))(Bressler, Steven) (Filed on 7/18/2014) Modified on 7/18/2014 (cpS, COURT STAFF). (Entered: 07/18/2014)
88 SECOND ORDER RE: PRODUCTION OF DOCUMENTS FOR IN CAMERA REVIEW. Signed by Judge Yvonne Gonzalez Rogers on 7/24/14. (fs, COURT STAFF) (Filed on 7/24/2014) (Entered: 07/24/2014)
89 NOTICE OF LODGING by Department of Justice re 88 Order (Bressler, Steven) (Filed on 7/25/2014) Modified on 7/28/2014 (cpS, COURT STAFF). (Entered: 07/25/2014)
90 ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 77 Motion for Summary Judgment; granting in part and denying in part 79 Motion for Summary Judgment. The parties are directed to submit a proposed form of judgment, approved as to form by both parties, forthwith. (fs, COURT STAFF) (Filed on 8/11/2014) (Entered: 08/11/2014)
91 Joint Notice of Submission of Proposed Form of Judgment by Department of Justice, Electronic Frontier Foundation (Attachments: # 1 Proposed Form of Judgment)(Bressler, Steven) (Filed on 8/28/2014) Modified on 8/29/2014 (cpS, COURT STAFF). (Entered: 08/28/2014)
92 JUDGMENT. Signed by Judge Yvonne Gonzalez Rogers on 8/29/14. (fs, COURT STAFF) (Filed on 8/29/2014) (Entered: 08/29/2014)
93 Consent MOTION for Extension of Time to File for Award of Attorney's Fees and Costs (Rule 54) filed by Electronic Frontier Foundation. (Attachments: # 1 Proposed Order)(Rumold, Mark) (Filed on 9/2/2014) (Entered: 09/02/2014)
94 ORDER by Judge Yvonne Gonzalez Rogers granting in part 93 Motion for Extension of Time to File to 11/14/14. (fs, COURT STAFF) (Filed on 9/3/2014) (Entered: 09/03/2014)

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 9 of 10

10/27/2014 10/27/2014 10/31/2014 11/03/2014 11/03/2014 02/04/2015 04/09/2015

95 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Department of Justice. Appeal of Order on Motion for Summary Judgment,,, 90 , Judgment 92 (Appeal fee FEE WAIVED.) (Bressler, Steven) (Filed on 10/27/2014) (Entered: 10/27/2014)
96 USCA Case Number 14−17098 Ninth Circuit Court of Appeals for 95 Notice of Appeal filed by Department of Justice. (cjlS, COURT STAFF) (Filed on 10/27/2014) (Entered: 10/28/2014)
97 STIPULATION WITH PROPOSED ORDER to Continue Deadline for Plaintiff's Petition for Fees and Costs filed by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 10/31/2014) Modified on 11/3/2014 (cpS, COURT STAFF). (Entered: 10/31/2014)
98 ORDER by Judge Yvonne Gonzalez Rogers granting 97 Stipulation to Continue Deadline for Plaintiff's Petition for Fees and Costs [AS MODIFIED BY THE COURT]. Compliance Hearing is set 5/8/15 at 9:01am. Joint Status Report filed by 5/1/15. (fs, COURT STAFF) (Filed on 11/3/2014) (Entered: 11/03/2014)
Set/Reset Hearing re 98 Order on Stipulation, Compliance Hearing is set for Friday, 5/8/2015 09:01 AM before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 11/3/2014) (Entered: 11/03/2014)
99 MANDATE of USCA as to 95 Notice of Appeal filed by Department of Justice (cpS, COURT STAFF) (Filed on 2/4/2015) (Entered: 02/04/2015)
100

***FILED IN ERROR, SEE DOCUMENT # 101 ***

04/09/2015 05/01/2015 05/04/2015 05/04/2015 06/05/2015 06/08/2015 08/15/2015 08/19/2015

JOINT STATUS STATEMENT by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 4/9/2015) Modified on 4/10/2015 (cpS, COURT STAFF). Modified on 4/10/2015 (cpS, COURT STAFF). (Entered: 04/09/2015)
101 Corrected Joint Status Report by Electronic Frontier Foundation, Department of Justice. (Rumold, Mark) (Filed on 4/9/2015) Modified on 4/10/2015 (cpS, COURT STAFF). (Entered: 04/09/2015)
102 JOINT STATUS REPORT and STIPULATION WITH PROPOSED ORDER to Set Deadline for a Further Status Report in 30 Days. filed by Department of Justice. (Bressler, Steven) (Filed on 5/1/2015) Modified on 5/4/2015 (kcS, COURT STAFF). (Entered: 05/01/2015)
103 ORDER by Judge Yvonne Gonzalez Rogers granting 102 Stipulation to set Deadline for Further Status Report; and Continuing Compliance Hearing to 6/12/2015 at 9:01am. (fs, COURT STAFF) (Filed on 5/4/2015) (Entered: 05/04/2015)
Set Deadlines/Hearings: Status Report due by 6/5/2015. Compliance Hearing is set for Friday, 6/12/2015 09:01 AM before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 5/4/2015) (Entered: 05/04/2015)
104 JOINT STATUS REPORT and STIPULATION WITH PROPOSED ORDER to set briefing schedule and hearing date for plaintiff's motion for attorney's fees and costsby Electronic Frontier Foundation. (Rumold, Mark) (Filed on 6/5/2015) Modified on 6/8/2015 (cpS, COURT STAFF). (Entered: 06/05/2015)
105 ORDER by Judge Yvonne Gonzalez Rogers granting 104 Joint Stipulation to set Briefing Schedule and Hearing Date for Plaintiff's Motion for Attorney's Fees and Costs and Vacating Compliance Hearing. (fs, COURT STAFF) (Filed on 6/8/2015) (Entered: 06/08/2015)
106 Joint NOTICE of Settlement of Plaintiff's Claim for Attorney's Fees by Department of Justice, Electronic Frontier Foundation (Bressler, Steven) (Filed on 8/15/2015) Modified on 8/17/2015 (cpS, COURT STAFF). (Entered: 08/15/2015)
107 CLERK'S NOTICE VACATING THE TUESDAY, OCTOBER 6, 2015 AT 2:00PM MOTION HEARING DATE. SEE DKT. NO. 106

Case: 4:11-cv-5221 As of: 11/29/2018 09:57 AM PST 10 of 10
(This is a text−only entry generated by the court. There is no document associated with this entry.) (fs, COURT STAFF) (Filed on 8/19/2015) (Entered: 08/19/2015)