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Case Name ACLU v. US Department of Justice NS-WA-0002
Docket / Court 2:09-cv-00642-RSL ( W.D. Wash. )
State/Territory Washington
Case Type(s) National Security
Attorney Organization ACLU Chapters (any)
ACLU Immigrants' Rights Project
Case Summary
On May 8, 2009, the American Civil Liberties Union ("ACLU") of Washington filed this lawsuit in the District Court for the Western District of Washington. The ACLU sued the United States Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), seeking declaratory and injunctive ... read more >
On May 8, 2009, the American Civil Liberties Union ("ACLU") of Washington filed this lawsuit in the District Court for the Western District of Washington. The ACLU sued the United States Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), seeking declaratory and injunctive relief to compel the DOJ to disclose and release records describing the operation and maintenance of the the National Crime Information Center Violent Gang and Terrorist Organization File, which was maintained by the Federal Bureau of Investigation ("FBI"), a component of the DOJ.

The National Crime Information Center ("NCIC"), a nationwide clearinghouse of reports operated by the FBI, provides direct online access to its computerized index of criminal justice information for local, state, federal, and tribal law enforcement officers, government agencies, financial institutions, prospective employers, etc. This database includes a Violent Gang and Terrorist Organizations File ("VGTOF"), which contains entries on suspected terrorist organizations and individuals. In 2003, there were over 7,000 individuals listed on the VGTOF as terrorists, though many of them had no criminal records. The ACLU was concerned that this could lead to grave ramifications, for instance, during a traffic stop where after running someone's credentials, the officer is alerted to the individual's status on the VGTOF and warned to approach that person with extreme caution. The VGTOF warning also instructs the officer to call the Terrorist Screening Center immediately and a number is provided on the officer's screen. The Terrorist Screening Center sends back one of four responses to the officer: "arrest, detain, investigate, or query." There is no option for letting the individual go among these responses.

In a 2005 test conducted by the Terrorist Screening Center, the VGTOF was found to contain a 40% error rate, most of which were in the portion of the database that instructs officers how to approach and interact with individuals who have entries in the VGTOF. On December 19, 2008, the ACLU sent a letter to the FBI submitting a Freedom of Information Act ("FOIA") request for "any record held by the U.S. Federal Bureau of Investigation describing the operation and maintenance of the National Crime Information Center Violent Gang and Terrorist Organization File." Though the ACLU received a letter dated January 5, 2006 indicating that the FBI received it's request, the FBI never followed up or provided any records requested by the ACLU. As a result, the ACLU filed this 2009 lawsuit claiming that the FBI violated it's rights under the Freedom of Information Act by failing to disclose and release the requested records.

On June 18, 2010, the DOJ filed a motion for summary judgment, claiming that it had conducted an adequate search for the requested documents, and properly withheld records and portions of records under applicable exemption under the Freedom of Information Act in order to protect classified information. On March 10, 2011, U.S. District Court Judge Robert S. Lasnik granted the DOJ summary judgment in part, but ordered the DOJ to edit any inappropriate redactions and provide more facts that would justify redacting or not providing a certain document.

On March 24, 2011, the DOJ filed a motion for reconsideration and a motion to stay the Court's order on their motion for summary judgment. On May 19, 2011, the Court granted the DOJ's motion for reconsideration in part, requiring that after the DOJ supplemented the Vaughn index regarding the documents discussed in sections 1, 4, and 5, the parties would attempt to resolve their differences regarding production of these documents. If the parties were unable to reach agreement, plaintiff could, within thirty days of production of the revised Vaughn index, file a supplemental memorandum to assist the Court during in camera review of the contested documents.

On May 24, 2011, the DOJ filed a second motion for reconsideration questioning the Court's jurisdiction to review a designation by TSA, which was granted on June 20, 2011. On June 22, 2011, the DOJ filed the supplemental Vaughn Declarations, and on July 6, 2011, submitted documents for in camera review.

On September 21, 2012, Judge Lasnik issued an order following in camera review, which required the DOJ to make certain disclosures. On October 1, 2012, the DOJ filed a third motion for reconsideration, claiming that it had further evidence to present the Court as to why exemption 1 applies to document numbers 79, 80, and 84. The Court granted the DOJ's motion for reconsideration to allow the DOJ to deliver to chambers an ex parte declaration addressing applicability of the exemption to these documents.

Shortly thereafter, the parties began negotiations for settlement. On March 7, 2013, they agreed upon a Stipulation and Proposed Order for Compromise Settlement and Release of Claims. On March 11, 2013, Judge Lasnik officially ordered the Stipulation for Compromise Settlement and Release of Claims, whereby the United States was to pay the ACLU $50,000 within 60 days via wire transfer, as full settlement for attorneys' fees and costs incurred by the ACLU in this lawsuit. This case is closed.

As a result of this lawsuit, the ACLU got many thousands of pages of materials. As far as we know, they are not publicly available--but they were used as the information base for a 2016 report titled "Trapped in a Black Box: Growing Terrorism Watchlisting in Everyday Policing."

Saeeda Joseph-Charles - 11/24/2016


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Issues and Causes of Action
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Issues
Content of Injunction
Required disclosure
General
Records Disclosure
Plaintiff Type
Non-profit NON-religious organization
Type of Facility
Government-run
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) United States Department of Justice
Plaintiff Description The American Civil Liberties Union (ACLU) of Washington
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU Immigrants' Rights Project
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Case Closing Year 2013
Case Ongoing No
Docket(s)
2:09−cv−00642−RSL (W.D. Wash.)
NS-WA-0002-9000.pdf | Detail
Date: 03/11/2013
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory and Injunctive Relief [ECF# 1]
NS-WA-0002-0001.pdf | Detail
Date: 05/08/2009
Source: PACER [Public Access to Court Electronic Records]
Order [Regarding Initial Disclosure, Joint Status Report and Early Settlement] [ECF# 17] (W.D. Wash.)
NS-WA-0002-0005.pdf | Detail
Date: 10/01/2009
Source: PACER [Public Access to Court Electronic Records]
Order [Denying Defendant's Motion for Open America Stay] [ECF# 27] (W.D. Wash.)
NS-WA-0002-0006.pdf | Detail
Date: 01/19/2010
Source: PACER [Public Access to Court Electronic Records]
Order [Granting Summary Judgment in Part] [ECF# 45] (2011 WL 887731 / 2011 U.S.Dist.LEXIS 26047) (W.D. Wash.)
NS-WA-0002-0003.pdf | WESTLAW| LEXIS | Detail
Date: 03/10/2011
Source: PACER [Public Access to Court Electronic Records]
Order [Granting Defendant's Motion for Reconsideration] [ECF# 61] (2011 WL 1900140 / 2011 U.S.Dist.LEXIS 53523) (W.D. Wash.)
NS-WA-0002-0004.pdf | WESTLAW| LEXIS | Detail
Date: 05/19/2011
Source: PACER [Public Access to Court Electronic Records]
Order [Granting Second Motion for Reconsideration] [ECF# 73] (W.D. Wash.)
NS-WA-0002-0007.pdf | Detail
Date: 06/20/2011
Source: PACER [Public Access to Court Electronic Records]
Documents Submitted for In-Camera Review
NS-WA-0002-0009.pdf | Detail
Date: 07/06/2011
Order Following In Camera Review [ECF# 80] (W.D. Wash.)
NS-WA-0002-0008.pdf | Detail
Date: 09/21/2012
Source: PACER [Public Access to Court Electronic Records]
Stipulation for Compromise Settlement and Release of Claims [ECF# 98]
NS-WA-0002-0002.pdf | Detail
Date: 03/11/2013
Source: PACER [Public Access to Court Electronic Records]
Judges Lasnik, Robert S. (W.D. Wash.)
NS-WA-0002-0003 | NS-WA-0002-0004 | NS-WA-0002-0005 | NS-WA-0002-0006 | NS-WA-0002-0007 | NS-WA-0002-0008 | NS-WA-0002-9000
Plaintiff's Lawyers Anello, Farrin R (New York)
NS-WA-0002-0001 | NS-WA-0002-9000
Desormeau, Katherine (California)
NS-WA-0002-0002 | NS-WA-0002-9000
Dunne, Sarah A. (Washington)
NS-WA-0002-0001 | NS-WA-0002-0002 | NS-WA-0002-9000
Gelernt, Lee (New York)
NS-WA-0002-0001 | NS-WA-0002-0002 | NS-WA-0002-9000
Ladin, Dror (New York)
NS-WA-0002-9000
Lee, Eunice (New York)
NS-WA-0002-0001 | NS-WA-0002-9000
Spidell, Melody Rose (Washington)
NS-WA-0002-9000
Williams, Harry IV (Washington)
NS-WA-0002-0001 | NS-WA-0002-9000
Wishnie, Michael J. (Connecticut)
NS-WA-0002-0001 | NS-WA-0002-0002 | NS-WA-0002-9000
Defendant's Lawyers Delery, Stuart F. (District of Columbia)
NS-WA-0002-0002
Durkan, Jenny A (Washington)
NS-WA-0002-0009
Kipnis, Brian C (Washington)
NS-WA-0002-0002 | NS-WA-0002-0009 | NS-WA-0002-9000
Shapiro, Elizabeth J. (District of Columbia)
NS-WA-0002-0002 | NS-WA-0002-0009
Sowles, Marcia Kay (District of Columbia)
NS-WA-0002-0002 | NS-WA-0002-0009 | NS-WA-0002-9000
West, Tony (District of Columbia)
NS-WA-0002-0009

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