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Case Name Electronic Privacy Information Center v. Department of Justice NS-DC-0084
Docket / Court 1:13-cv-01961-KBJ ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
Case Summary
On December 9, 2013, Electronic Privacy Information Center (“EPIC”), a public interest research institution focused on privacy, freedom of expression, and democratic values in the information age, filed suit in the United States District Court for the District of Columbia against the National ... read more >
On December 9, 2013, Electronic Privacy Information Center (“EPIC”), a public interest research institution focused on privacy, freedom of expression, and democratic values in the information age, filed suit in the United States District Court for the District of Columbia against the National Security Division of the U.S. Department of Justice (“DOJ”) under the Freedom of Information Act (FOIA) 5 U.S.C. § 552. The plaintiff sought the processing of its expedited FOIA request and the release of the following:
1. Semiannual reports to Congressional committees on use of pen registers and trap and trace (PRTT) devices for surveillance under the Foreign Intelligence Surveillance Act;
2. All information the defendant had provided to these committees on this subject; and
3. All records the defendant had used in preparing these reports and information.
The plaintiff alleged that it was lawfully entitled to these reports under 5 U.S.C. § 552(a)(3)(A) and that the defendant’s failure to process and respond to its request for these records violated the FOIA statutory deadline. Alongside its suit, the plaintiff also filed a motion for a preliminary injunction requiring the defendant to expedite the processing of its FOIA request and complete its processing within twenty days.

On February 11, 2014, Judge Ketanji Brown Jackson denied the plaintiff’s motion for preliminary injunction. Judge Jackson held that EPIC had failed to demonstrate that it would suffer irreparable harm if the DOJ was not ordered to produce the records immediately. Moreover, the Court noted that the classified nature of the documents weighed in favor of the DOJ. 15 F.Supp. 3d 32.

On March 18, 2014, the defendant released to the plaintiff the first tranche of records relating to its FOIA request, twenty-five semiannual reports to Congressional committees on use of PRTT devices for surveillance. The defendant withheld portions of these documents for reasons of “national security” under 5 U.S.C. § 552(b)(1), “exemption by statute” under 5 U.S.C. § 552(b)(3), “unwarranted invasion of personal privacy” under 5 U.S.C. § 552(b)(6) and 5 U.S.C. § 552(b)(C), and “disclosure of law enforcement techniques and procedures” under 5 U.S.C. § 552(b)(7)(E).

On May 29, 2014 and August 6, 2014, the defendant released to the plaintiff the second and third tranches of records relating to its FOIA request, fifty-two documents used by the defendant to produce the semiannual reports to Congressional committees on use of PRTT devices for surveillance. The defendant, like it did in the first tranche of records, withheld portions of these documents for reasons of “national security,” “exemption by statute,” “unwarranted invasion of personal privacy,” and “disclosure of law enforcement techniques and procedures.”

On October 31, 2014, the defendant filed a motion for summary judgment and attached to it, as an exhibit, a Vaughn index that listed the 139 documents that the defendant had withheld in full or in part and specified for each document under which exemption(s) information had been withheld. The defendant noted that the plaintiff had agreed not to challenge its withholding in full of thirty-eight documents. It further argued that it had satisfied the plaintiff’s FOIA request because that the information it had withheld from the documents was exempt from disclosure under “national security,” “exemption by statute,” “unwarranted invasion of personal privacy,” and “disclosure of law enforcement techniques and procedure.”

On November 21, 2014, the plaintiff filed a cross motion for summary judgment. It did not challenge any of the defendant’s withholdings under “unwarranted invasion of personal privacy” and argued the following:
1. The defendant had improperly redacted information from twenty-five semiannual reports under “national security” and “disclosure of law enforcement techniques and procedure”
2. The defendant had failed to disclose “reasonably segregated portions” of discussions of documents it had withheld in full, including significant United States Foreign Intelligence Surveillance Court (FISC) legal interpretations, discussions of FISC jurisdiction and Foreign Intelligence Surveillance Act procedures, and statistics about the number of pen registers filed and U.S. persons targeted.

In December 2014, the defendant released the statistics about the number of pen registers filed and U.S. persons targeted, which it had previously, incorrectly redacted from three semiannual reports.

On February 4, 2016, Judge Ketanji Brown Jackson denied both the defendant’s motion for summary judgment and the plaintiff’s cross motion for summary judgment. He noted that the number of documents whose exemption issues the parties contested had narrowed substantially since the motions were filed and held that the defendant had failed to establish with sufficient specificity its justifications for withholding information in the remaining contested documents. The judge then ordered the defendant to file an updated Vaughn Index, listing the challenged withholdings in the remaining contested documents, and to submit unredacted revisions of these documents to the court for a private review. (2016 WL 447426).

On March 18, 2016, the defendant filed a revised Vaughn Index and submitted the contested documents to the court for private review. The defendant also released to the plaintiff previously withheld portions of seventy-three pages from five semiannual reports but redacted portions of these pages that it had previously released as unredacted in the first tranche of documents in March 2014.

On April 8, 2016, the defendant again filed a motion for summary judgment. The defendant argued that it had released all the non-exempt, reasonably segregable portions of the contested documents and that the information it had withheld from these documents was exempt from disclosure under “national security,” “exemption by statute,” and “disclosure of law enforcement techniques and procedure.”

On April 8, 2016, the plaintiff filed a motion for partial summary judgment. The plaintiff argued the following:
1. The defendant had implicitly conceded in its most recent release of documents that certain redacted portions of the documents it initially released were not properly exempt and that certain redacted portions of the reprocessed pages were not properly exempt.
2. The defendant had not provided evidence to show that the remaining disputed material was exempt.
3. The court record contradicted many of the defendant’s claims about exemption, which was evidence of bad faith.

On September 30, 2017, Judge Jackson granted in part and denied in part the defendant’s motion for summary judgment, denied the plaintiff’s motion for summary judgment, and order the defendant to reprocess the contested parts of the semiannual reports one more time to address certain issues identified in his opinion. At the time of this summary, the judge’s opinion had not yet been published.

The case is ongoing.

Chris Opila - 10/20/2017


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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 Privacy Information Center, a public interest research institution focused on privacy, freedom of expression, and democratic values in the information age
Class action status sought No
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Case Ongoing Yes
Docket(s)
1:13-cv-1961 (D.D.C.)
NS-DC-0084-9000.pdf | Detail
Date: 09/30/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive Relief [ECF# 1]
NS-DC-0084-0001.pdf | Detail
Date: 12/09/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 15] (D.D.C.)
NS-DC-0084-0002.pdf | Detail
Date: 02/11/2014
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order Denying Cross Motions for Summary Judgment Without Prejudice and Requiring Supplemental Submissions [ECF# 32] (D.D.C.)
NS-DC-0084-0003.pdf | Detail
Date: 02/04/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Jackson, Ketanji Brown (D.D.C.)
NS-DC-0084-0002 | NS-DC-0084-0003 | NS-DC-0084-9000
Plaintiff's Lawyers Butler, Alan (District of Columbia)
NS-DC-0084-9000
McCall, Ginger P. (District of Columbia)
NS-DC-0084-9000
Rotenberg, Marc (District of Columbia)
NS-DC-0084-0001 | NS-DC-0084-9000
Stepanovich, Amie L. (District of Columbia)
NS-DC-0084-0001 | NS-DC-0084-9000
Defendant's Lawyers Anderson, Caroline J (District of Columbia)
NS-DC-0084-9000
Bressler, Steven Y. (District of Columbia)
NS-DC-0084-9000
Patton, Rodney (District of Columbia)
NS-DC-0084-9000

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