On October 20, 2016, Color of Change and Center for Constitutional Rights, nonprofit civil rights advocacy and communications organizations, brought this action under the Freedom of Information Act ("FOIA") in the Southern District of New York. The plaintiffs, represented by an attorney from the Milton Kramer Law Clinic at Case Western, an attorney from the Center for Constitutional Rights, and an attorney for Clifford Chance, sued the U.S. Department of Homeland security ("DHS") and the Federal Bureau of Investigation ("FBI"), seeking declaratory, injunctive, and other appropriate relief to compel the defendants to produce records related to federal government surveillance and monitoring of protest activities related to the Movement for Black Lives ("MBL").

Following the shooting of 18-year-old Michael Brown by a police officer in Ferguson, Missouri, MBL gained national scope and influence, drawing public attention to police violence and advocating for police reform and racial justice. The plaintiffs alleged in their complaint that government documents, news reports, and first-hand accounts demonstrated that the defendants, and state and local law enforcement agencies, had engaged in surveillance and monitoring of MBL demonstrations and individual activists aligned with the movement, using tactics and measures commonly reserved for counterterrorism and national security related purposes. They further alleged that this monitoring of legitimate protest activities undermined the First Amendment's protection of political speech, and would chill valuable public debate about police violence, including use of deadly force, criminal justice, and racial inequities.

On July 5 2016, the plaintiffs submitted their FOIA request to DHS and the FBI:

DHS
On July 18, 2016, DHS's privacy office sent a letter to the plaintiffs acknowledging receipt of the request. DHS denied the plaintiffs' request for expedited processing and a fee waiver, which the plaintiffs appealed. On August 29, 2016, DHS acknowledged that it had received the appeal, but never responded to it.

On September 27, 2016, the plaintiffs received a response from the Office of Intelligence & Analysis, a component of DHS, claiming that a search of its files revealed no records responsive to the plaintiffs' request. The plaintiffs appealed that decision based on the Office of Intelligence and Analysis' failure to perform an adequate search for records and its improper reliance on FOIA exemptions to avoid searching for, or producing, responsive records. On October 20, the plaintiffs received an acknowledgment from DHS regarding the appeal, but did not receive any other response or correspondence.

FBI
On July 28, 2016, the FBI sent a letter acknowledging receipt of the plaintiffs' request. Unlike DHS, the FBI granted the plaintiffs' request for expedited processing, however, it did not indicate whether processing had begun or when it would be complete. On September 20, 2016, the plaintiffs sent the FBI a letter requesting that the FBI notify them of when to expect to receive documents responsive to their request, but the FBI never responded.

An initial pretrial conference was originally set for January 20, 2017, before U.S. District Court Judge William H. Pauley III. After several motions to push back the date of the initial pretrial conference, the conference was held on February 24, 2017. Another status conference was held on April 21, 2017. During this conference, the parties agreed to the discovery schedule of 500 pages per month of responsive documents.

During discovery, both parties narrowed the requested documents, and prepared to file motions to contest or uphold exemptions. In line with timelines set in a February 9, 2018 scheduling conference, both parties filed motions for partial summary judgment surrounding release of a non-finalized intelligence assessment titled "(U\\FOUO) Growing Frequency of Race-Related Domestic Terrorist Violence." On July 9, 2018, Judge William Pauley ruled in favor of the defendants, saying that this document falls under FOIA's exemption 5 for process-related documents. He wrote that, because this document was written by an analyst and an intern, it revealed the processes of how DHS assesses and analyzes intelligence.

With this motion for summary judgment decided and the cooperation of the parties outside of the contested DHS memo, all issues in the case were settled outside of the allocation of attorney fees. With this in mind, after an August 7, 2018 status report, Judge Pauley filed an order to partially dismiss the case, closing all claims outside of attorney fees.

The case was briefly stayed in late 2018 and early 2019 due to the U.S. federal government shutdown. On March 12, 2019, Judge Pauley received a status report indicating that the parties reached a settlement on attorney fees. He ordered dismissal on April 11 and published the terms of the agreement; the FBI would pay $12,527.11, the Federal Emergency Management Administration (FEMA) would pay $1,742.81, the Cybersecurity Infrastructure Security Agency (CISA) would pay $11,655.40, and DHS Intelligence and Analysis would pay $11,655.40 to the plaintiffs.

The case is closed.

Saeeda Joseph-Charles - 11/17/2016
Taylor Brook - 03/12/2018
Ellen Aldin - 05/28/2020


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