University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Electronic Privacy Information Center v. Department of Homeland Security NS-DC-0098
Docket / Court 1:13-cv-00260-JEB ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
Speech and Religious Freedom
Case Summary
On February 27, 2013, the Electronic Privacy Information Center (EPIC) filed this lawsuit against the Department of Homeland Security (DHS) for failure to release information in response to EPIC's Freedom of Information Act (FOIA). The FOIA request was filed on July 10, 2012 regarding the ... read more >
On February 27, 2013, the Electronic Privacy Information Center (EPIC) filed this lawsuit against the Department of Homeland Security (DHS) for failure to release information in response to EPIC's Freedom of Information Act (FOIA). The FOIA request was filed on July 10, 2012 regarding the disclosure of a communication shutdown procedure approved by DHS. EPIC claimed that DHS's failure to respond to an administrative appeal violated the statutory deadline imposed by FOIA. Additionally, EPIC claims that DHS failed to make a reasonable effort to search for the documents requested and that DHS was unlawfully withholding said documents. The EPIC requested injunctive relief from the court to compel immediate disclosure of the relevant records.

The FOIA request was for disclosure of records related to a communication shutdown procedure called Standard Operating Procedure (SOP) 303 described in the 2006-07 DHS Issue Review as codifying a "shutdown and restoration process for use by commercial and private wireless networks during national crises" to prevent the remote detonation of bombs.

On July 11, 2011 a Bay Area Rapid Transit (BART) officer in San Francisco shot and killed a homeless man. He later alleged that the homeless man had a knife and that the officer had shot him in self defense. This resulted in a major protest against BART. The second protest on August 12, 2011 was cut short when BART supposedly used the SOP 303 communication shutdown procedure to shut off all cellular service in several of its transit stations for three hours.

DHS responded to EPIC's FOIA request on August 21, 2012 notifying EPIC that DHS was unable to locate or identify the records requested. EPIC administratively appealed this response on September 13, 2012. DHS, which was statutorily required by FOIA to respond to an administrative appeal within 20 days, did not submit a timely response.

On May 20, 2013, Judge James E. Boasberg ordered the disclosure of any segregable portions of SOP 303. On June 28, 2013, DHS disclosed the document, but withheld portions under FOIA exemptions 6 and 7(C), 7(E), and 7(D) on the grounds that they included personal information of DHS officials, techniques and procedures for law enforcement investigations or prosecutions, or endangered the life of any individual. At the same time, DHS moved for summary judgment and EPIC made a cross-motion for summary judgment. On November 12, 2013 Judge James E. Boasberg granted EPIC's motion for summary judgment on the grounds that DHS's invocation of exemptions 7(E) and 7(D) were improper, and stayed the order pending the defendant's appeal to the DC Circuit Court.

On June 1, 2015, The DC Circuit Court reversed and remanded the case to the district court to determine whether any segregable portions of SOP 303 could be disclosed.

On July 10, 2015, DHS submitted a redacted version of SOP 303 to Judge Boasberg, who decided consistent with the court of appeals' decision that DHS did not need to disclose any further information and entered judgment in favor DHS.

Afterwards, the parties litigated regarding DHS's payment of EPIC's attorney's fees. On July 18, 2016, the judge granted in part the motion for attorney's fees totaling $20,145.04.

The case is now closed.



Amanda Kenner - 03/26/2017


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Issues and Causes of Action
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Issues
Defendant-type
Law-enforcement
General
Phone
Record-keeping
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. ยง 552
Defendant(s) Department of Homeland Security
Plaintiff Description The Electronic Privacy Information Center (EPIC) is a nonprofit research organization that conducts government oversight and analyzes the effect of governmental actions on civil liberties and privacy interests.
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Source of Relief Litigation
Form of Settlement Confession of Judgment
Case Closing Year 2016
Case Ongoing No
Docket(s)
1:13-cv-00260-JEB (D.D.C.)
NS-DC-0098-9000.pdf | Detail
Date: 07/18/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
NCC Standard Operating Procedure 303
NS-DC-0098-0010.pdf | External Link | Detail
Date: 09/25/2009
Source: Defendant or Defendant's Counsel
Complaint for Injunctive Relief [ECF# 1]
NS-DC-0098-0001.pdf | Detail
Date: 02/27/2013
Source: PACER [Public Access to Court Electronic Records]
Motion for Summary Judgment [ECF# 10]
NS-DC-0098-0002.pdf | Detail
Date: 06/28/2013
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Opporition [ECF# 11]
NS-DC-0098-0003.pdf | Detail
Date: 07/26/2013
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment [ECF# 12]
NS-DC-0098-0004.pdf | Detail
Date: 07/26/2013
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 18] (D.D.C.)
NS-DC-0098-0005.pdf | Detail
Date: 11/12/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 19] (999 F.Supp.2d 24) (D.D.C.)
NS-DC-0098-0006.pdf | WESTLAW| LEXIS | Detail
Date: 11/12/2013
Source: PACER [Public Access to Court Electronic Records]
Judgment [Ct. of App. ECF# 23] (777 F.3d 518)
NS-DC-0098-0007.pdf | WESTLAW| LEXIS | Detail
Date: 06/01/2015
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 32] (D.D.C.)
NS-DC-0098-0008.pdf | Detail
Date: 07/18/2016
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 33] (197 F.Supp.3d 29) (D.D.C.)
NS-DC-0098-0009.pdf | WESTLAW| LEXIS | Detail
Date: 07/18/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Boasberg, James Emanuel (FISC, D.D.C.)
NS-DC-0098-0005 | NS-DC-0098-0006 | NS-DC-0098-0008 | NS-DC-0098-0009 | NS-DC-0098-9000
Randolph, Arthur Raymond (D.C. Circuit)
NS-DC-0098-0007
Rogers, Judith Ann Wilson (D.C. Circuit)
NS-DC-0098-0007
Sentelle, David Bryan (W.D.N.C., D.C. Circuit)
NS-DC-0098-0007
Plaintiff's Lawyers Butler, Alan (District of Columbia)
NS-DC-0098-9000
Horwitz, Julia (District of Columbia)
NS-DC-0098-0003 | NS-DC-0098-0004
Jacobs, David (District of Columbia)
NS-DC-0098-0003 | NS-DC-0098-0004
McCall, Ginger P. (District of Columbia)
NS-DC-0098-0001 | NS-DC-0098-0003 | NS-DC-0098-0004 | NS-DC-0098-9000
Rotenberg, Marc (District of Columbia)
NS-DC-0098-0003 | NS-DC-0098-0004 | NS-DC-0098-9000
Defendant's Lawyers Delery, Stuart F. (District of Columbia)
NS-DC-0098-0002
Machen, Ronald C (District of Columbia)
NS-DC-0098-0002
Sandberg, Justin Michael (District of Columbia)
NS-DC-0098-0002 | NS-DC-0098-9000
Shapiro, Elizabeth J. (District of Columbia)
NS-DC-0098-0002

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