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May 19, 2003


The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge


In response to the events of September 11, 2001, Congress enacted the USA PATRIOT Act,*fn1 which gave federal officials greater power to conduct surveillance within the United States for purposes of both preventing terrorism and monitoring the activity of foreign intelligence agents. In this case, plaintiffs have brought an action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), seeking information about how the Department of Justice ("DOJ") has used this new authority. As helpfully narrowed by the parties, the instant dispute centers on certain records that DOJ claims are protected from disclosure by two FOLA exemptions. Specifically, the information at issue concerns the number of times DOJ has used the particular surveillance and investigatory tools authorized by the Patriot Act since the statute took effect.

To protect this information from disclosure, defendant first invokes Exemption 1, which authorizes the withholding of records "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552 (b)(1). Defendant further relies upon Exemption 5, which shields "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." Id. at § 552(b)(5). In response to these withholdings, plaintiffs argue that Exemption 1 does not preclude disclosure because the aggregate statistical data at issue here should not have been classified, and that Exemption 5 is inapplicable because they seek only factual information that can readily be segregated from those records properly protected by the deliberative process privilege.

Both parties have now moved for summary judgment on these issues. For the reasons given below, the Court concludes that DOJ's assertion of Exemption 1 is appropriate, and that the dispute about Exemption 5 is largely illusory. Indeed, it is clear from the Court's in camera review of the Exemption 5 material that, with only one exception, the documents at issue are not responsive to plaintiffs' request because they do not contain the statistical information the withholding of which plaintiffs now contest. And, insofar as one document does contain statistics of the sort that plaintiffs seek, that information has in fact been properly withheld under Exemption 1. Accordingly, the Court will grant defendant's motions for summary judgment, and deny plaintiffs' motion.


President Bush signed the Patriot Act into law on October 26, 2001, of direct relevance to the present action, the statute includes several provisions designed to give law enforcement officers greater authority to conduct certain kinds of surveillance and searches. Most of these changes take the form of amendments to the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq. ("FISA").*fn2 First, section 214 of the Patriot Act drops FISA's restriction on the use of pen registers and trap and trace devices*fn3 against U.S. citizens and lawful permanent aliens (whom FISA calls "U.S. persons," 50 U.S.C. § 1801 (1)). Under the amendment, these tools may now be used against such persons, provided that the information sought is certified as being "relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." Patriot Act, § 214, codified at 50 U.S.C. § 1842 (a)(1); (c)(2)*fn4. Before section 214 was enacted, FISA did not allow the use of pen registers and tap and trace devices against U.S. persons. Such authority could, however, be obtained outside of FISA, upon the certification of a federal or state law enforcement officer that the information "likely to be obtained is relevant to ongoing criminal investigation." 18 U.S.C. § 3122 (b)(2) (emphasis added).

Next, section 215 amends section 502 of FISA to authorize the FBI to "make an application for an order requiring the production of any tangible things (including books, records, papers, documents, or other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." Patriot Act, § 215, codified at 50 U.S.C. § 1861 (a)(1). This amendment substantially expanded the old provision in FISA, under which the FBI could compel only the disclosure of certain business records (rather than "any tangible things") in the possession of a limited subset of entities: a "common carrier, public accommodation facility, physical storage facility, or vehicle rental facility." Pub. L. No. 105-272, § 602 (Oct. 20, 1998). What's more, the Patriot Act eliminated another significant limitation on the use of this authority: the requirement that there be "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." Id. Now, in order to gain access to information covered by section 215, the FBI need only specify that the "records concerned are sought for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities." 50 U.S.C. § 1861 (b)(2).

A third change to FISA concerns the use of so-called "roving" surveillance. With a roving wiretap, the government can intercept all of a suspect's communications relating to the conduct under investigation, regardless of the suspect's location, and regardless of what particular phone or e-mail account he may be using. This usually requires enlisting third parties other than those mentioned in the original surveillance order to install the monitoring device. Thus, under section 206 of the Patriot Act, a court approving a FISA order may direct common carriers, landlords, custodians, or other specified persons to furnish assistance necessary to accomplish the authorized electronic surveillance "in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specific person." Patriot Act, § 206, codified at 50 U.S.C. § 1805 (c)(2)(B). With this provision in place, the government need not return to court for a new surveillance order every time the target changes location, but instead can present a generic order to the new carrier, landlord, or custodian, "directing their assistance to assure that the surveillance may be undertaken as soon as technically feasible." H.R. REP. No. 107-236(I), at 60 (Oct. 11, 2001).

Finally, the Patriot Act expanded the government's information-gathering powers in at least one other way unrelated to FISA. Section 213 provides explicit authority for federal law enforcement officers to use so-called "sneak-and-peek" warrants. Such warrants allow agents to conduct searches secretly (whether physically or virtually), to observe or copy evidence, and to depart the location searched, generally without taking any tangible evidence or leaving notice of their presence. See Congressional Research Service, The USA Patriot Act: A Legal Analysis at 62-63 (Apr. 15, 2002). Before the enactment of the Patriot Act, a court's ability to approve a sneak-and-peek warrant under FED. R. CRIM. P. 41, which clearly required notice when tangible property is actually seized, was not entirely settled. E.g., United States v. Pangburn, 983 F.2d 449, 453-55 (2d Cir. 1993) (holding that Rule 41 also requires that notice be provided where a search warrant "authorizes covert entry to seize intangibles"). Section 213 clarified the issue, specifically allowing officers to delay giving notice to the subject of a search if the court issuing the warrant "finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result." Patriot Act, § 213, codified at 18 U.S.C. § 3103a(b). Moreover, although in more limited circumstances, these new warrants may also authorize the seizure of tangible property.*fn5

Ever since it was proposed, the Patriot Act has engendered controversy and debate. The Justice Department, which is largely responsible for its implementation, has provided only limited information to the public regarding how, and how often, the new provisions described above have been used.*fn6 In June 2002, the House Judiciary Committee asked DOJ to respond in writing to a series of 50 questions concerning the Department's implementation of the statute. While DOJ provided answers to these questions in two letters dated July 29 and August 26, it deemed some of its answers to be classified, and thus provided them at first only to the House Permanent Select Committee on Intelligence ("HPSCI"). (Letter from Daniel Bryant, Assistant Attorney General to Congressman James Sensenbrenner, Jr., July 26, 2002.) Specifically, the answers to six of these questions "required the disclosure of sensitive FISA operational intelligence information," and therefore were classified at the SECRET level.*fn7 (Def.'s Mot. for Summ. J., ex. 4 [Letter from Daniel Bryant, Assistant Attorney General to Congressman Richard A. Gephardt, Oct. 22, 2002].) While Chairman James Sensenbrenner of the House Judiciary Committee ultimately received some of these classified answers, they were not (and have not been) made available to the public. (Mem. in Support of Pls.' Mot. for Summ. J. at 4 & n. 5.)

Plaintiffs' FOIA request, which was filed in August 2002, represents an attempt to compel the Department to be more forthcoming. Three basic categories of information were sought. First, plaintiffs requested all records prepared or collected by DOJ in connection with the classified answers, some of which they believe were improperly classified. Second, they asked for policy directives and other guidance materials issued by DOJ regarding the use of certain surveillance techniques authorized by the Patriot Act. Third, and most importantly for this case, plaintiffs sought records containing aggregate statistical information revealing how often DOJ had used the Act's new surveillance and search provisions: roving surveillance under section 206; pen registers/trap and trace devices under section 214; demands for production of tangible things under section 215; and sneak and peek warrants under section 213. (Mem. in Support of Pls.' Mot. for Pre. Inj. at 12-15.)

Plaintiffs also requested expedited processing of their FOIA request, which defendant granted on September 3, 2002. On October 16, however, defendant indicated that it had not yet completed its search for responsive records, which led plaintiffs to file this action on October 24. They then filed a motion for a preliminary injunction on November 13, seeking to force DOJ to respond to their request immediately. After this Court held a hearing on November 26, both sides agreed that defendant would complete its processing by January 15, 2003. After DOJ sought and received several extensions of this deadline, it finished work on plaintiffs' request on March 3. Three separate components of DOJ handled this request: the Office of Information and Privacy ("OIP"); the Office of Intelligence Policy and Review ("OIPR"); and the FBI.

OIP searched for and reviewed records located in the Department's senior leadership offices. Ultimately, it identified 166 pages of responsive, nonpublic documents, and released 108 of these pages in their entirety. OIP released an additional 52 pages with excisions either pursuant to FOIA Exemptions 5, 6, and 7(C), or of material not responsive to plaintiffs' request.*fn8 The remaining six pages were referred to OIPR for processing. (Second Decl. of Melanie Pustay [Sec. Pustay Decl.] ¶¶ 9, 11.) In turn, OIPR, the component directly responsible for preparing applications for electronic surveillance and physical searches under FISA, located 34 responsive documents (68 pages), mostly e-mail messages discussing the Department's responses to the House Judiciary Committee's questions. (Decl. of James A. Baker [Baker Decl.] ¶ 8.) Two of these documents were released unredacted. Twenty-two additional documents were released with excisions, pursuant to Exemptions 5 and 6. Eight remaining documents were withheld in their entirety, based on Exemptions 1, 5, and 6. The two final documents were referred to OIP and the FBI for their review and direct response. (Id. at ¶ 11.) Finally, the FBI released a total of 157 pages of documents, some of which were redacted. In addition, 50 full pages were withheld based on Exemptions 1, 2, 5, 7(C), and 7(E).*fn9 (Revised Second Decl. of Christine Kiefer [Kiefer Decl.] ¶¶ 10-11.)

As noted, plaintiffs have now waived all challenges to withholdings under Exemptions 2, 6, and 7. In addition, plaintiffs have dropped their challenge to the adequacy of defendant's searches. (Mem. in Supp. of Pls.' Mot. for Summ. J. at 8-10 & nn. 8-10.) As such, the only remaining issue in this case is whether OIP, OIPR, and the FBI properly invoked Exemptions 1 and 5 to justify the withholding of aggregate, statistical data concerning the extent to which DOJ has used its new powers under the Patriot Act to conduct particular forms of surveillance and searches. The universe of such documents is not vast. Under Exemption 1, the contested withholdings involve two full documents located by OIPR and portions of 14 documents located by the FBI. Under Exemption 5, plaintiffs object to the withholding of portions of 26 documents ...

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