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Case Name Electronic Frontier Foundation v. Department of Justice NS-DC-0081
Docket / Court 1:14-cv-00760-RMC ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
Case Summary
On May 1, 2014, the Electronic Frontier Foundation (EFF), an international non-profit digital rights group, filed this lawsuit in the United States District Court for the District of Columbia. The plaintiff sued the Department of Justice (DOJ) under the Freedom of Information Act (FOIA), 5 U.S.C. § ... read more >
On May 1, 2014, the Electronic Frontier Foundation (EFF), an international non-profit digital rights group, filed this lawsuit in the United States District Court for the District of Columbia. The plaintiff sued the Department of Justice (DOJ) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The EFF, representing itself, sought the expedited processing and release of records requested from the DOJ and the National Security Division (NSD). The EFF claimed that the requested records concerned an actual or alleged federal government activity about which there is an urgency to inform the public, and that the requests were made by a person primarily engaged in disseminating information. Specifically, the EFF claimed that the requested records also involved a matter of widespread and exceptional media interest, with possible questions about the governments’ integrity, and thereby affected public confidence. The case was assigned to Judge Rosemary M. Collyer.

The DOJ responded on June 2, 2014, and generally denied any and all allegations. The DOJ noted that there has been an ongoing public debate about the government’s foreign intelligence collection pursuant to the Foreign Intelligence Surveillance Act, as amended (“FISA”), and that there is legislation pending in Congress.

On August 1, the EFF filed for a preliminary injunction and sought an order requiring the DOJ to expedite the processing of the four FOIA requests DOJ-NSD and to complete the processing and release of all records within 10 days. The four requests were: (1) August 23, 2013 request seeking disclosure of two Foreign Intelligence Surveillance Court (FISC) opinions; (2) October 31, 2013 request seeking disclosure of two FISC opinions and associated documents; (3) (3) February 24, 2014 request seeking disclosure of any still secret Foreign Intelligence Court of Review (FISCR) decisions and any opinion and orders of the U.S. Supreme Court in any matter appealed from the FISCR; and (4) March 14, 2014 request seeking disclosure of three separate FISC opinions and related documents.

In response, the DOJ submitted a 22-page memorandum of law on August 8, 2014, arguing that: (1) the EFF is unlikely to succeed on the merits of its claim that the DOJ failed to expedite the processing of the four FOIA requests; (2) the EFF has not demonstrated that it will suffer irreparable harm in the absence of a mandatory injunction; (3) the mandatory emergency injunction that EEF sought would harm the public interest; and (4) EFF’s requested mandatory injunction is improper because it would afford them full relief, not intermediate relief. It appears that the DOJ produced various documents, and EFF withdrew most of its requests. On September 5, 2014, the EFF withdrew its request for preliminary injunction, and the Court granted the EFF’s request to a firm schedule for agency determinations on its FOIA requests.

On October 30, 2015, the court noted in its opinion that at this point, EFF challenged only the withholding of one single document (a specific FISC opinion). The court denied the EFF’s request on the grounds that it is exempt from disclosure because the opinion is properly classified and because its disclosure is prohibited by statute. The court referenced a related FOIA suit also involving EFF and the release of a FISC opinion (Electronic Frontier Foundation v. DOJ, 57 F. Supp. 3d 54 (D.D.C. 2014)), whereby Judge Amy Berman Jackson held that the DOJ properly withheld the FISC opinion because the information was classified and exempt from disclosure under FOIA. Summary judgement was entered in favor of the DOJ. 141 F.Supp.3d 51. 2015; U.S. Dist. LEXIS 147182.

The EFF filed an appeal to United States Court of Appeals for the District of Columbia Circuit on December 30, 2015.

On January 12, 2016 the EFF requested the district court to reconsider its judgement, arguing that the USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015), enacted on June 2, 2015, rendered the government’s classification decision improper. The EFF referred specifically to Section 402 of USA Freedom, now codified at 50 U.S.C. § 1872. EFF argued that the DOJ’s exemption claims are inconsistent with the requirements of USA FREEDOM, for (1) the withheld opinion contains a significant interpretation of 50 U.S.C. § 1809, and (2) because the withheld opinion can no longer be ‘validly’ classified in full, the exemption invoked by the DOJ cannot apply. On February 16, 2015, EFF withdrew the motion for reconsideration subsequent to receiving the Government’s view that Section 402 of the USA FREEDOM Act applies only prospectively to significant decisions of the FISC.

During the same period, on January 29, 2016, the EFF submitted to the appellate court a statement of issues, within which it questioned whether the district court erred in ruling that the DOJ was not obligated under the FOIA to disclose a responsive, requested record here the agency failed to establish that the record was properly withheld in its entirety under FOIA Exemptions 1 and 3.

On April 8, 2016, EFF moved to voluntarily dismiss the appeal, as the FISC opinion it sought had become publicly available. The court clerk ordered the case as dismissed on April 27, 2016. 2016 WL 3041648.

The case is closed.

Dawn Lui - 11/02/2018


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Issues and Causes of Action
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Issues
General
Record-keeping
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
Plaintiff Description Electronic Frontier Found (EFF) is an international non-profit digital rights group based in San Francisco, California.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Mixed
Public Int. Lawyer No
Nature of Relief Documents disclosed
Source of Relief Litigation
Form of Settlement Voluntary Dismissal
Filing Year 2014
Case Closing Year 2016
Case Ongoing No
Case Listing NS-DC-0080 : Electronic Frontier Foundation v. Department of Justice (D.D.C.)
Docket(s)
1:14-cv-00760-RMC (D.D.C.)
NS-DC-0081-9000.pdf | Detail
Date: 04/27/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive Relief [ECF# 1]
NS-DC-0081-0001.pdf | Detail
Date: 05/01/2014
Source: PACER [Public Access to Court Electronic Records]
Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction [ECF# 9]
NS-DC-0081-0002.pdf | Detail
Date: 08/08/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion [ECF# 22] (141 F.Supp.3d 51) (D.D.C.)
NS-DC-0081-0011.pdf | WESTLAW| LEXIS | Detail
Date: 10/30/2015
Source: PACER [Public Access to Court Electronic Records]
Notice of Appeal [Ct. of App. ECF# 2]
NS-DC-0081-0010.pdf | Detail
Date: 12/24/2015
Source: PACER [Public Access to Court Electronic Records]
Underlying Decision From Which This Appeal Arises [Ct. of App. ECF# 13] (141 F.Supp.3d 51)
NS-DC-0081-0007.pdf | WESTLAW| LEXIS | Detail
Date: 01/29/2016
Source: PACER [Public Access to Court Electronic Records]
Appellant's Unopposed Motion to Voluntarily Dismiss Appeal [Ct. of App. ECF# 19]
NS-DC-0081-0009.pdf | Detail
Date: 04/08/2016
Source: PACER [Public Access to Court Electronic Records]
Order [Ct. of App. ECF# 21] (2016 WL 3041648)
NS-DC-0081-0008.pdf | WESTLAW | Detail
Date: 04/27/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Collyer, Rosemary M. (FISC, D.D.C.)
NS-DC-0081-0007 | NS-DC-0081-0011 | NS-DC-0081-9000
Plaintiff's Lawyers Cardozo, Nathan (California)
NS-DC-0081-0001
Lynch, Jennifer (California)
NS-DC-0081-0001
Rumold, Mark Thomas (California)
NS-DC-0081-0001 | NS-DC-0081-0009 | NS-DC-0081-0010
Sobel, David L. (District of Columbia)
NS-DC-0081-0001 | NS-DC-0081-0009 | NS-DC-0081-0010 | NS-DC-0081-9000
Defendant's Lawyers Delery, Stuart F. (District of Columbia)
NS-DC-0081-0002
Patton, Rodney (District of Columbia)
NS-DC-0081-9000
Shapiro, Elizabeth J. (District of Columbia)
NS-DC-0081-0002
Snead, Jacqueline E. Coleman (District of Columbia)
NS-DC-0081-0002 | NS-DC-0081-9000

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