On July 30, 2015, a non-profit organization focusing on First Amendment press rights sued the U.S. Dept. of Justice in the Northern District of California for injunctive relief under the Freedom of Information Act. Plaintiff sought the expedited processing and release of records from the FBI ...
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On July 30, 2015, a non-profit organization focusing on First Amendment press rights sued the U.S. Dept. of Justice in the Northern District of California for injunctive relief under the Freedom of Information Act. Plaintiff sought the expedited processing and release of records from the FBI concerning the procedures by which the Bureau issues National Security Letters ("NSLs") and exigent letters to investigate members of the press. Plaintiff believes that the records meet FOIA’s requirements for expedited processing as they are are “of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(v)(II).
18 U.S.C. § 2709 authorizes the FBI to NSLs to obtain subscriber information, toll billing records, and transactional records from wire or electronic communications service providers in national security investigations. The FBI issues these NSLs without any prior judicial review, and Section 2709(c) allows the FBI to impose an indefinite nondisclosure order on an NSL recipient. Similarly, exigent letters allow the FBI to obtain phone records in emergency situations without serving prior legal process.
In three cases currently before the Ninth Circuit, the constitutionality of the NSL framework is being challenged, though the practice of issuing NSLs continues. See Under Seal v. Lynch, Nos. 13-15957, 13-16731, 13-16732 (9th Cir. argued Oct. 8, 2014).
FBI procedures for interacting with the media are contained in a publicly available document called “Media Guidelines.” The latest update to the Guidelines in January 2015 contains no procedures for issuing NSLs or exigent letters, so Plaintiff requested this information in a FOIA request dated March 10, 2015. While the FBI granted the request for expedited processing only ten days later, the agency has yet to make a final determination to release the records. Plaintiff appealed the constructive denial in May 2015, and received a letter in July indicating that the request would take a further seven months to be decided upon. This is far beyond the generally applicable twenty-day deadline for processing any FOIA request.
A hearing schedule was set on January 21, 2016. Motions are due by May 2016 and a hearing is scheduled for August 11, 2016.Dan Hofman - 02/25/2016
Dan Hofman - 03/09/2016