On October 26, 2011, a nonprofit civil liberties organization filed a lawsuit in the U.S. District Court for the Northern District of California under the Freedom of Information Act (FOIA) against the U.S. Department of Justice (DOJ). The plaintiff, represented by public interest counsel from the ...
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On October 26, 2011, a nonprofit civil liberties organization filed a lawsuit in the U.S. District Court for the Northern District of California under the Freedom of Information Act (FOIA) against the U.S. Department of Justice (DOJ). The plaintiff, represented by public interest counsel from the Electronic Frontier Foundation, asked the court for injunctive relief, claiming that the DOJ was withholding agency records concerning the DOJ's interpretation and use of Section 215 of the Patriot Act without legitimate justification under any of the limited exemptions in the FOIA. Specifically, the plaintiff claimed that the DOJ failed to expedite the processing of the requests (despite granting the request for expediting the process), denied the plaintiff's request for a public interest fee waiver, and failed to respond within the twenty-day deadline for the processing of a non-expedited FOIA request. On November 3, 2011, the plaintiff filed an amended complaint further detailing the government's withholding of records.
On February 16, 2012, Judge Yvonne Gonzalez Rogers granted the parties' proposed stipulation regarding the processing of the FOIA requests. The stipulation set a schedule for responding to the plaintiffs' FOIA request. The schedule underwent several modifications during the litigation. In addition, the Director of National Intelligence declassified and released to the public certain information related to the "business records" provision of FISA following the unauthorized disclosure of a top secret U.S. court document. As a result, the DOJ had to determine what effect, if any, this release of documents had on the classification of information in some of the withheld documents at issue in this case.
On September 6, 2013, Judge Gonzalez Rogers denied the parties' respective motions for summary judgment, without prejudice. Judge Gonzalez Rogers also ordered the DOJ to release to the plaintiff non-exempt records responsive to the plaintiff's request for significant opinions or orders of the FISC and any significant documents, procedures, or legal analyses incorporated into FISC opinions or orders that the DOJ or NSA has treated as binding. Judge Gonzalez Rogers also ordered the DOJ to complete further re-review of the remaining responsive records.
As a result of this September 2013 order, the government released hundreds of pages of previously secret FISA documents detailing the court's interpretation of Section 215, including an opinion excoriating the NSA for misusing its mass surveillance database for years. In October 2013, the government released a second batch of documents related to Section 215, which showed, among other things, that the NSA had collected cell site location without notifying its oversight committees in Congress or the FISA court. The EFF continued to argue for further disclosures of documents that the government was withholding. The government claimed that these documents were exempt from release.
On June 13, 2014, Judge Gonzalez Rogers ordered the DOJ to produce the following documents for in camera inspection by the Court to assist the Court in making a responsible de novo determination whether the documents were clearly exempt from disclosure under the FOIA: (1) FISC opinion dated 8/20/2008 (6 pages); (2) FISC order dated 10/31/2006 (19 pages); (3) FISC orders dated 2/17/2006 (17 pages); (4) FISC orders dated 2/24/2006 (8 pages); and (5) FISC orders dated 12/16/2005 (16 pages).
The case is ongoing while the court determines if the withheld documents at issue were exempt from disclosure under FOIA. Jessica Kincaid - 06/21/2014