University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Electronic Privacy Information Center v. National Security Agency NS-DC-0003
Docket / Court 10-0196 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
Case Summary
In June 2009, plaintiff Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act request to defendant National Security Agency (NSA) for records related to National Security Presidential Directive 54 (NSPD 54), aka Homeland Security Presidential Directive 23 that was ... read more >
In June 2009, plaintiff Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act request to defendant National Security Agency (NSA) for records related to National Security Presidential Directive 54 (NSPD 54), aka Homeland Security Presidential Directive 23 that was issued by President George W. Bush in January 2009, and to the Comprehensive National Cybersecurity Initiative (CNCI). NSA released several redacted documents. However, it informed EPIC that it had no records responsive to the Cybersecurity Initiative, and records responsive to the NSPD 54 request were withheld under FOIA exemptions for inter-agency memoranda, classified information, and presidential communications privilege.

EPIC filed an administrative appeal, and brought suit in United States District Court for the District of Columbia in February 2009 against NSA and the National Security Council (NSC) under the Freedom of Information Act, 5 U.S.C. § 552, and the Administrative Procedure Act, 5 U.S.C. § 706, seeking production of the records and a Vaughn index of withheld records and applicable exemptions.

The NSC was immediately dismissed as a defendant because it is not an "agency" within the meaning of FOIA.

Defendant NSA and plaintiff EPIC cross-moved for summary judgment in late 2011. Nearly two years later, in October 2013, the district court ruled that NSPD 54 is not an agency record at all because it originated with the President or the NSC, and contained clear limits on its use and further dissemination. Electronic Privacy Information Center v. Nat'l Security Agency, -- F. Supp. 2d --, 2013 WL 5701645, (D.D.C. Oct. 21, 2013).Thus, NSPD 54 was "the type of document that is generally not ordered disclosed under the FOIA." Id. at *9. However, the district court ruled that several portions of EPIC's FOIA request survived because the requested records originated with the NSA. Defendant NSA was ordered to produce those responsive records or to submit a Vaughn index detailing the records and applicable exemptions.

Elizabeth Homan - 11/11/2013


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Issues and Causes of Action
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Issues
Content of Injunction
Recordkeeping
Defendant-type
Jurisdiction-wide
General
Confidentiality
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) National Security Agency
National Security Council
Plaintiff Description Plaintiff is the Electronic Privacy Information Center.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Mixed
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
1:10-cv-00196-BAH (D.D.C.) 11/05/2013
NS-DC-0003-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive Relief 02/04/2010
NS-DC-0003-0001.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion 07/07/2011 (795 F.Supp.2d 85) (D.D.C.)
NS-DC-0003-0002.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion 10/21/2013 (2013 WL 5701645) (D.D.C.)
NS-DC-0003-0003.pdf | WESTLAW | Detail
Document Source: Westlaw
Order 11/21/2013 (D.D.C.)
NS-DC-0003-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Howell, Beryl Alaine (D.D.C.)
NS-DC-0003-0002 | NS-DC-0003-0003 | NS-DC-0003-0004 | NS-DC-0003-9000
Monitors/Masters None on record
Plaintiff's Lawyers Kaprove, Marc Esquire (District of Columbia)
NS-DC-0003-0001
McCall, Ginger P. (District of Columbia)
NS-DC-0003-9000
Rotenberg, Marc (District of Columbia)
NS-DC-0003-0001 | NS-DC-0003-9000
Stepanovich, Amie L. (District of Columbia)
NS-DC-0003-9000
Verdi, John Arthur (District of Columbia)
NS-DC-0003-0001 | NS-DC-0003-9000
Defendant's Lawyers Dworkowitz, Gregory Peter (District of Columbia)
NS-DC-0003-9000
Littleton, Judson O. (District of Columbia)
NS-DC-0003-9000
Wilkenfeld, Joshua (District of Columbia)
NS-DC-0003-9000
Other Lawyers None on record

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