University of Michigan Law School
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Case Name Electronic Frontier Foundation v. Department of Justice NS-DC-0082
Docket / Court 1:11-cv-00939-RJL ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
Case Summary
On May 19, 2011, the Electronic Frontier Foundation (EFF), a non-profit organization concerned with technology-related civil liberty issues, filed suit in the United States District Court for the District of Columbia against the United States Department of Justice (DOJ) under the Freedom of ... read more >
On May 19, 2011, the Electronic Frontier Foundation (EFF), a non-profit organization concerned with technology-related civil liberty issues, filed suit in the United States District Court for the District of Columbia against the United States Department of Justice (DOJ) under the Freedom of Information Act (FOIA) 5 U.S.C. § 552. The plaintiff sought the release of a document that the DOJ Office of Legal Counsel had prepared to examine the authority of the Federal Bureau of Investigation (FBI) under 18 U.S.C. 2511(2)(f) to obtain certain telephone records without administrative subpoenas or any other legal process. The plaintiff alleged that the defendant had wrongfully withheld this document under 5 U.S.C. § 552(b)(1) and (5) and that the plaintiff had exhausted the available FOIA administrational remedies to obtain this opinion.

On November 10, 2011, the DOJ filed for summary judgment. On December 19, 2011, the EFF filed a cross motion for summary judgment.

On September 21, 2012, Judge Richard J. Leon granted the defendant’s motion for summary judgment and denied that of the plaintiff. The court held that the requested document, in its entirety, was exempt from FOIA disclosure for two reasons:

1. The document was properly exempt from disclosure in the interest of national security because it contained classified information pertaining to intelligence activity. If disclosed, the information could threaten national security; and
2. The document fell under the “deliberative process privilege” because it was pre-decisional and deliberative in nature and it was generated as part of a continuous process of agency decision-making. (892 F.Supp.2d 95).

On November 15, 2012, the plaintiff appealed the district court’s decision to the United States Court of Appeals for the District Columbia. The plaintiff contested the ruling that the document was covered by the deliberative process privilege and argued that even if this privilege were to apply to the document, the FBI had waived the privilege by relying on the document in dealings with Congress and the Office of the Inspector General. The plaintiff also alleged that the district court had erred in failing to determine whether there was unclassified, factual information that was “reasonably separable” from the document’s other content and therefore disclosable. (739 F.3d 1).

The Court of Appeals held oral arguments before Judges Sri Srinivasan, Harry T. Edwards, and David B. Sentelle on November 26, 2013. On January 3, 2014, Judge Edwards, for the Court of Appeals, affirmed the district court’s decision. He held the following:
1. The requested document was covered by the deliberative process privilege;
2. The FBI had never waived the deliberative process privilege by adopting the document’s determination as its own; and
3. As the document was exempt from disclosure under deliberative process privilege, the court did not need to decide whether particular sections of the document were properly withheld as classified, or whether some material was reasonably segregable from the material properly withheld (739 F.3d 1).

On October 14, 2014, the US Supreme Court denied EFF’s petition for writ of certiorari. The case is now closed.

Chris Opila - 09/28/2017


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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) United States Department of Justice
Plaintiff Description Electronic Frontier Foundation (EFF), a non-profit organization concerned with technology-related civil liberty issues
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Case Closing Year 2014
Case Ongoing No
Docket(s)
1:11-cv-00939-RJL (D.D.C.)
NS-DC-0082-9000.pdf | Detail
Date: 03/25/2014
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive Relief [ECF# 1]
NS-DC-0082-0001.pdf | Detail
Date: 05/19/2011
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 22] (892 F.Supp.2d 95) (D.D.C.)
NS-DC-0082-0004.pdf | WESTLAW| LEXIS | Detail
Date: 09/21/2012
Source: PACER [Public Access to Court Electronic Records]
Judgment [Ct. of App. ECF# 26] (739 F.3d 1)
NS-DC-0082-0005.pdf | WESTLAW| LEXIS | Detail
Date: 03/25/2014
Source: PACER [Public Access to Court Electronic Records]
Judges Edwards, Harry Thomas (D.C. Circuit)
NS-DC-0082-0005
Leon, Richard J. (D.D.C.)
NS-DC-0082-0004 | NS-DC-0082-9000
Plaintiff's Lawyers Rumold, Mark Thomas (California)
NS-DC-0082-0005
Sobel, David L. (District of Columbia)
NS-DC-0082-0001 | NS-DC-0082-9000
Defendant's Lawyers Delery, Stuart F. (District of Columbia)
NS-DC-0082-0005
Layton, Elizabeth (District of Columbia)
NS-DC-0082-9000
Machen, Ronald C (District of Columbia)
NS-DC-0082-0005
Raab, Michael S. (District of Columbia)
NS-DC-0082-0005
Tenny, Daniel (District of Columbia)
NS-DC-0082-0005

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