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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