University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re Motion for Consent to Disclosure of Court Records or, in the Alternative, a Determination of the Effect of the Court's Rules on Statutory Access Rights [FISA Docket Misc. 13-01] NS-DC-0019
Docket / Court Misc. 13-01 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Court
Case Summary
In July 2012, the Electronic Frontier Foundation (EFF) had filed a Freedom of Information Act (FOIA), 5 U.S.C. § 552, request with the U.S. Department of Justice (DOJ). The FOIA request sought any written opinion or order issued by the Foreign Intelligence Surveillance Court (FISC) in which the ... read more >
In July 2012, the Electronic Frontier Foundation (EFF) had filed a Freedom of Information Act (FOIA), 5 U.S.C. § 552, request with the U.S. Department of Justice (DOJ). The FOIA request sought any written opinion or order issued by the Foreign Intelligence Surveillance Court (FISC) in which the FISC held government surveillance conducted under the Foreign Intelligence Surveillance Act (FISA) was unreasonable under the Fourth Amendment or had circumvented the law. DOJ did not release any requested letters in response to the request. Therefore, EFF filed suit in the United States District Court of the District of Columbia. See Electronic Frontier Found. v. Dep 't of Justice, No. 12-CV-1441-ABJ (D.D.C. filed Aug. 30, 2012).

By letter dated January 3, 2013, the DOJ informed EFF that it had located records, including a FISC opinion, responsive to EFF's FOIA request. However, the records were withheld in full under FOIA Exemptions 1 (classified as secret) and 3 (exempt by another statute). In April 2013, DOJ moved for summary judgment, claiming that FISC Rules barred the agency from disclosing any part of the responsive opinion. On April 24, 2013, EFF asked the district court to stay proceedings in the matter in order to resolve the interplay among the FISC procedural rules, FOIA, and the FISC opinions at issue.

On May 23, 2013, EFF filed a motion to the FISC to disclose the Court's records and to provide a determination whether the FISC Rules bar disclosure of records otherwise subject to release under FOIA.

On June 12, 2013, FISC Judge Reggie Walton granted EFF's motion in part. He held that FISC Rules do not prohibit the Government from disclosing copies of FISC opinions in response to EFF's FOIA request. However, the FISC declined to decide other issues presented in the FOIA litigation, including whether the responsive opinions were subject to disclosure under FOIA.

Elizabeth Homan - 04/26/2014


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Content of Injunction
Monitoring
Recordkeeping
Warrant/order for search or seizure
General
Courts
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) United States Department of Justice
Plaintiff Description Electronic Frontier Foundation is a nonprofit organization that focuses on civil liberties with respect to the internet and technology.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Declaratory Judgment
Source of Relief Litigation
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2013
Case Ongoing No
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)
No docket sheet currently in the collection
General Documents
Electronic Frontier Foundation Motion 5.23.13 05/21/2013
NS-DC-0019-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 05.24.13 05/24/2013 (FISC)
NS-DC-0019-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
U.S. Response 06.07.13 06/07/2013
NS-DC-0019-0003.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 06.12.13 06/12/2013 (2013 WL 5460051) (FISC)
NS-DC-0019-0004.pdf | WESTLAW | Detail
Document Source: Office of the Director of National Intelligence
Judges Walton, Reggie B. (FISC, D.D.C.)
NS-DC-0019-0002 | NS-DC-0019-0004
Monitors/Masters None on record
Plaintiff's Lawyers None on record
Defendant's Lawyers Carlin, John P. (District of Columbia)
NS-DC-0019-0003
Gauhar, Tashina (District of Columbia)
NS-DC-0019-0003
Patterson, Nicholas J. (District of Columbia)
NS-DC-0019-0003
Wiegmann, J. Bradford (District of Columbia)
NS-DC-0019-0003
Other Lawyers Rumold, Mark Thomas (California)
NS-DC-0019-0001
Sobel, David L. (District of Columbia)
NS-DC-0019-0001

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