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Case Name Electronic Frontier Foundation v. Department of Justice NS-DC-0080
Docket / Court 1:12-cv-01441-ABJ ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Foreign Intelligence Surveillance Court
Case Summary
On August 30, 2012, Plaintiff Electronic Frontier Foundation filed this lawsuit in the United States District Court for the District of Columbia. The Plaintiff sought injunctive relief against Defendants Department of Justice, Office of Information Policy (OIP), and National Security Division (NSD) ... read more >
On August 30, 2012, Plaintiff Electronic Frontier Foundation filed this lawsuit in the United States District Court for the District of Columbia. The Plaintiff sought injunctive relief against Defendants Department of Justice, Office of Information Policy (OIP), and National Security Division (NSD) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Plaintiff is a non-profit corporation based in Massachusetts focused on informing policy makers and the general public about civil liberties issues related to technology and to act as a defender of those liberties.

On July 26, 2012, the Plaintiff requested from OIP and NSD documents relating to the government’s collection of foreign intelligence pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA) as amended by the FISA Amendment Act (FAA) of 2008. This request was made shortly after Senator Ron Wyden of the Senate Select Committee on Intelligence requested the public release of information concerning the government’s Section 702 collection under the FAA. Four statements concerning the Section 702 surveillance activities were declassified in response to the Senator’s request, revealing to the public for the first time that the implementation of Section 702 had sometimes “circumvented the spirit of the law”, at least once violating the fourth amendment.

The Plaintiff asked the Defendants to expedite their FOIA request as their business was “primarily engaged in disseminating information” and because the requests involved a “matter of widespread and exceptional media interest in which there exists possible questions about the government’s integrity which affects public confidence.” There is a generally applicable twenty-day deadline for the processing of any FOIA request, and more than thirty days had passed since the original request was made by the time this action commenced. The Plaintiff sought injunctive relief ordering the documents to be processed and sent to them immediately, for all fees to be waived, and attorney’s fees covered.

The Defendants alleged that on August 13, 2012, NSD notified the Plaintiff that it refused to expedite the FOIA request because the Plaintiff failed to demonstrate a “compelling need” for expedition. The Defendants established that it expected to complete processing of the FOIA request by December 5, 2012, at which time they would produce any responsive, non-exempt information to Plaintiff.

On January 3, 2013, NSD produced two partially redacted, responsive documents to the Plaintiff’s counsel. Three other responsive documents were withheld pursuant to two exceptions in the FOIA statute that prevent disclosure of information that would harm an interest of national defense or foreign policy, as well as information that is prohibited from disclosure by another statute.

The Defendants filed a motion for summary judgment on April 1, 2013, but in June (while the motion was still pending), Edward Snowden—a former government contractor—leaked to media outlets thousands of classified documents relating to the U.S. government’s intelligence surveillance program. The President subsequently ordered the Director of National Intelligence to review and declassify all the information that could be disclosed without harming national security in an effort to enhance transparency and regain the public’s trust. Some of this newly declassified information was contained in the five responsive documents that the Defendants had identified to the Plaintiff on January 3, 2013. In light of the new status of these documents, the Defendants withdrew their motion for summary judgment, reprocessed the five documents, and reproduced them to the Plaintiff with redactions. The Plaintiff disagreed with the redactions made to one of these documents: an October 2011 Foreign Sovereign Intelligence Court (FISC) Opinion.

On September 4, 2013, the Defendants moved for summary judgment, and on October 2, 2013, the Plaintiff cross-moved for summary judgment. The sole issue presented in the Motions was whether the Defendants were justified in withholding the redacted information in the October 11 FISC Opinion. The Court agreed to conduct an in camera review of the unredacted document and ordered the Defendants to explain certain redactions. In response, the Defendants lifted many of the redactions and disclosed the information that was the subject of the Court’s questions.

A brief stay was issued from October 3 until October 18, 2013 in response to the October 2013 federal government shutdown that prohibited the Defendants from working.

On July 18, 2014, District Judge Amy B. Jackson granted the Defendants’ Motion for Summary Judgment and denied the Plaintiff’s cross-Motion for Summary Judgment. 57 F.Supp.3d 54. She found that the Defendants met their burden to show that the redacted information could reasonably damage the country’s national security if released, and that therefore, the remaining redactions were properly withheld.

On November 7, 2014, the Plaintiff moved for attorney’s fees. It argued that it was eligible for fees (1) because it obtained various judicial orders issued by the U.S. District Court for the District of Columbia and FISC and (2) because its efforts were necessary to the release of the redacted 2011 FISC Opinion (the “catalyst theory”). The Plaintiff argued that its efforts caused the disclosure of all the information in the 2011 FISC opinion that could be revealed by a FOIA request.

The Defendants argued that the Plaintiff should not be awarded attorney’s fees because the government’s disclosure of the 2011 FISC Opinion was not caused by the litigation, but rather by Edward Snowden’s unauthorized leaks and the Office of the Director of National Intelligence’s subsequent declassification initiative. If this argument was accepted, it would cancel the Plaintiff’s eligibility for attorney’s fees as the Plaintiff must be the substantially prevailing party to be eligible.

On September 30, 2015, Magistrate Judge G. Michael Harvey granted in part and denied in part the Plaintiff’s motion for attorney’s fees and costs. The Court sided with the Plaintiff’s argument and found that the Plaintiff was eligible for an award of fees. The Court also found that the Plaintiff met the four criteria for entitlement to attorney’s fees. First, the result of this case added to the public benefit as the disclosure of the 2011 FISC Opinion had a significant impact on the public discussion of the NSA’s surveillance programs and was still ongoing. Second and Third, the Plaintiff organization’s objectives and status as a non-profit make it clear that they sought the documents in question primarily for public dissemination on an issue of public importance, rather than for commercial purposes (therefore passing the “Commercial Benefit” and “Plaintiff’s Interest” requirements). Fourth, the Court did not find the Defendants’ assertion of a FISC rule as a bar to disclosure compelling.

The Court reduced the total amount of fees awarded to the Plaintiff because of hourly calculations that it found questionable. The Plaintiff was awarded total fees in the amount of $49,124.50 and total administrative costs of $350.

On November 16, 2015, the Defendant notified the Court that it would not challenge the Magistrate Judge’s decision on the award of attorneys’ fees. The case is closed.

Robert Carnes - 10/04/2017


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Issues and Causes of Action
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Issues
General
Records Disclosure
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) Department of Justice
Plaintiff Description The Plaintiff is a non-profit corporation based in Massachusetts focused on informing policy makers and the general public about civil liberties issues related to technology and to act as a defender of those liberties.
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Source of Relief Litigation
Case Closing Year 2015
Case Ongoing No
Docket(s)
1:12−cv−01441−ABJ−GMH (D.D.C.)
NS-DC-0080-9000.pdf | Detail
Date: 11/16/2015
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive Relief [ECF# 1]
NS-DC-0080-0001.pdf | Detail
Date: 08/29/2012
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Unopposed Motion to Stay Proceedings [ECF# 12]
NS-DC-0080-0002.pdf | Detail
Date: 04/24/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 31] (57 F.Supp.3d 54) (D.D.C.)
NS-DC-0080-0003.pdf | WESTLAW| LEXIS | Detail
Date: 07/18/2014
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 47] (D.D.C.)
NS-DC-0080-0004.pdf | Detail
Date: 09/30/2015
Source: PACER [Public Access to Court Electronic Records]
Judges Harvey, G. Michael (D.D.C.) [Magistrate]
NS-DC-0080-0004 | NS-DC-0080-9000
Jackson, Amy Berman (D.D.C.)
NS-DC-0080-0003 | NS-DC-0080-9000
Plaintiff's Lawyers Lynch, Jennifer (California)
NS-DC-0080-0001
Rumold, Mark Thomas (California)
NS-DC-0080-0001
Sobel, David L. (District of Columbia)
NS-DC-0080-0001 | NS-DC-0080-0002 | NS-DC-0080-9000
Defendant's Lawyers Bressler, Steven Y. (District of Columbia)
NS-DC-0080-9000
Snead, Jacqueline E. Coleman (District of Columbia)
NS-DC-0080-9000

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