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AMERICAN CIVIL LIBERTIES UNION v. DOJ

May 10, 2004.

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge

MEMORANDUM OPINION

This lawsuit represents plaintiffs' second attempt to obtain information under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), regarding the Department of Justice's (DOJ) use of the USA Patriot Act.*fn1 Plaintiffs' first request concerned the number of times DOJ had used various surveillance and investigatory tools authorized by the Patriot Act, which gives federal officials greater authority to conduct surveillance within the United States to monitor the activity of foreign intelligence agents. In that case, the Court granted summary judgment to the government, upholding the government's withholding under Exemption 1 of FOIA. See ACLU v. DOJ, 265 F. Supp.2d 20, 34 (D.D.C. 2003) ("ACLUT). The section of the Patriot Act at issue here is section 215, which was also one of the provisions at issue in ACLUI. As explained in that case, section 215 substantially expands the powers of the FBI under the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq. ("FISA"), to "make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information . . . or to protect against international terrorism or clandestine intelligence activities. . . ." Patriot Act § 215, codified at 50 U.S.C. § 1861(a)(1). Before the amendment, the FBI could compel only the disclosure of certain business records (rather than "any tangible things") in the possession a "common carrier, public accommodation facility, physical storage facility, or vehicle rental facility," and could only exercise its authority when it had "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." Pub.L. No. 105-272, 112 Stat. 2396 § 602 (Oct. 20, 1998). Now, the FBI need only specify in a FISA request that the "records concerned are sought for an authorized investigation" consistent with the purposes of section 215. 50 U.S.C. § 1861(b)(2).

Since its implementation, the government has provided limited information to the public regarding its use of section 215. The provision itself contains a subsection prohibiting anyone served with a section 215 order from disclosing that the FBI sought or obtained information under the provision. Id. § 1861(d). And, although the total number of secret surveillance warrants sought and issued under the Patriot Act is required to be disclosed annually,*fn2 the number of applications submitted and approved under each provision is only shared with designated congressional oversight committees — in classified form. See, e.g., 50 U.S.C. § 1862 (providing for biannual reporting to the committees on the judiciary of the "total number of applications made for orders approving requests for the production of tangible things" under section 215 and "total number of such orders either granted, modified, or denied").

  After the Court issued its opinion in ACLUI, the Attorney General, in order to address the "troubling amount of public distortion and misinformation in connection with Section 215," issued a memorandum declassifying "the number of times to date that the Department of Justice, including the Federal Bureau of Investigation (FBI), has utilized Section 215 of the USA PATRIOT Act relating to the production of business records. The number of times Section 215 has been used to date is zero (0)." (Pls.' Cross-mot. Ex. A, Attach. 3 [Mem. for FBI Director Robert S. Mueller from the Attorney General].) In other words, the declassified statistic "represents the number of times a Section 215 FISA application has been approved by the FISA court and then implemented by the FBI." (Supp. Hardy Decl. ¶ 5.)

  The Attorney General's declassification decision prompted plaintiffs to renew their prior request, but this time focusing only on section 215. Currently, plaintiffs seek two categories of information pertaining to that provision. First, they have requested "the total number of Section 215 requests received by the FBI's National Security Law Unit" (at FBI headquarters) from FBI field offices between October 26, 2001 and February 7, 2003,*fn3 and second, they seek "any and all records relating to Section 215 of the Patriot Act" on an expedited schedule. (Hardy Decl. Ex. B. [Pls.' Oct. 23, 2003 FOIA request to FBI] at 2.) The government maintains that the Attorney General's declassification decision has no bearing on its continued Exemption 1 withholding of the statistic representing the number of times that FBI field offices have submitted section 215 applications to FBI headquarters, and contends that expedited processing of plaintiffs' request for all section 215 records is not warranted. Both parties have moved for partial summary judgment on these issues. For the reasons given below, the Court concludes that plaintiffs are entitled to expedited processing of their request, but that the Attorney General's declassification decision does not alter the Court's conclusion that the requested information is properly withheld under Exemption 1.

  ANALYSIS

 I. EXPEDITED PROCESSING

  Plaintiffs have requested expedited processing of their request for "all records relating to Section 215." FOIA provides for expedited processing of requests for agency records, directing agencies to "process as soon as practicable any request for records to which [they have] granted expedited processing." 5 U.S.C. § 552(a)(6)(E)(iii). Expedition is available for requests "(I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency." Id. § 552(a)(6)(E)(i). Plaintiffs invoke two possible avenues for expedited processing. First, "with respect to a request made by a person primarily engaged in disseminating information," a compelling need for expedition may be shown by demonstrating an "urgency to inform the public concerning actual or alleged Federal Government activity." Id. § 552(a)(6)(E)(v)(II); see also 28 C.F.R. § 16.5(d)(1)(ii). Second, pursuant to DOJ regulation, requests may be expedited if they involve a "matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." 28 C.F.R. § 16.5(d)(1)(iv). Plaintiffs submitted a request based on the former standard to the FBI, and based on the latter to the Office of Public Affairs (OPA).*fn4 (See Hardy Decl. Ex. B.) Their requests were denied, and now both parties have moved for summary judgment with respect to plaintiffs' request for expedited processing.

  A. Compelling need under 28 C.F.R. § 16.5(d)(1)(ii)

  As a preliminary matter, the government contends that plaintiffs' claim for expedited processing pursuant to 28 C.F.R. § 16.5(d)(1)(ii) should be dismissed because they did not appeal the decision refusing to expedite their request, thereby failing to exhaust the available administrative remedies before bringing suit. (See Def.'s Mot. at 19 (citing Ogles by v. United States Dept. of the Army, 920 F.2d 57, 65 (D.C. Cir. 1990) ("foregoing an administrative appeal will preclude the requester from ever bringing suit on that request because the individual will not have exhausted his administrative remedies")).) FOIA, however, specifically authorizes judicial review for challenges to "[a]gency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph. . . ." 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added). This italicized language "clearly indicates that judicial review is appropriate at either of two moments: when the agency has denied a request for expedited processing, or when the agency has, upon administrative appeal, affirmed the denial of such a request." Al-Fayed v. CIA, No. 00-2092, 2000 U.S. Dist. LEXIS 21476, *7 (D.D.C. Sept. 20, 2000), aff'd on other grounds, 254 F.3d 300, 311 (D.C. Cir. 2001) (holding that judicial review of agency's denial of expedited processing request is appropriate where plaintiff did not appeal the decision to the agency); see also EPICv. DOJ, No. 03-2078, slip op. at 5 (D.D.C. Dec. 19, 2003) (same).

  This express provision for judicial review defeats the government's attempts to discredit the holdings in Al-Fayed and EPIC. For example, contrary to the government's position, the fact that section 552(a)(6)(E)(ii)(II) requires agencies to enact regulations ensuring "expeditious consideration of administrative appeals" of expedited processing decisions does not make such an appeal & prerequisite for judicial review. See 5 U.S.C. § 552(a)(6)(E)(ii)(II). The administrative appeal requirement imposed upon claimants seeking review of fee waiver denials is likewise not relevant here, because FOIA does not expressly allow a requester to seek immediate judicial review of a fee waiver refusal. See id. § 552(a)(4)(vii). Furthermore, although DOJ has issued a regulation stating that an administrative appeal is generally required before seeking judicial review, see 28 C.F.R. § 16.9(c), those regulations do not preempt the express allowance of an election provided by the statute. See EPIC, No. 03-2078, at 5 (quoting Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1313 (D.C. Cir. 2003) ("`No particular deference' is owed to an agency's interpretation of FOIA.")). Thus, although complete exhaustion of administrative remedies is often required (as in Oglesby) before seeking the court's review of FOIA determinations, it is applied "because of specific provisions in FOIA that are inapplicable in the expedited processing context," EPIC, at 5-6, and therefore, plaintiffs' failure to appeal the FBI's refusal to expedite their request does not preclude judicial review of the decision.

  Turning to the merits, the Court must decide whether plaintiffs have demonstrated an "urgency to inform" and hence a "compelling need" for the documents they seek. This determination hinges on three factors: (1) whether the request concerns a matter of current exigency to the American public; (2) whether the consequences of delaying a response would compromise a significant recognized interest; and (3) whether the request concerns federal government activity. See Al-Fayed, 254 F.3d at 310. Review of the agency's decision that a request poses no "compelling need" is de novo, but the factors must be "narrowly applied," see id. at 310-11, and the Court is restricted to the record before the agency at the time it denied the request for expedited processing. See 5 U.S.C. § 552(a)(6)(E)(iii).

  The government concedes that plaintiffs' request concerns federal government activity, but argues that there is no urgency to inform the public about it, nor any significant recognized interest at stake.*fn5 Section 215, however, unquestionably implicates important individual liberties and privacy concerns which are of immediate public interest in view of the ongoing debate regarding the renewal and/or amendment of the Patriot Act. Newspaper articles plaintiffs cited in their request for expedited processing discuss, for example, how widespread public concern is reflected by the many resolutions passed by local and state governments urging Congress to narrow provisions of the Patriot Act. See, e.g., Dan Eggen, Patriot Monitoring Claims Dismissed, Washington Post, Sept. 19, 2003, at A2 ("More than 150 cities and three states have passed resolutions condemning the legislation as an attack on individual liberties."). Plaintiffs also cited an article discussing the Attorney General's August 2003 cross-country tour initiated to defend the Patriot Act against its numerous critics. See Editorial, Ashcroft's Dragnet, Boston Globe, Sept. 9, 2003, at A14 ("The invitation-only session [in Boston] is part of Ashcroft's 18-city tour to defend the Patriot Act against mounting claims that it undermines civil liberties.")*fn6 Because the records that plaintiffs seek relate to current surveillance efforts, the potential invasion of the public's privacy interests is of immediate concern, weighing in favor of a finding of expediency. See Al-Fayed, 254 F.3d at 310 (finding expedited processing inappropriate where "[a]ll of the events and alleged events occurred two to three years before plaintiffs made their request for expedited processing" and thus "none of the events at issue is the subject of a currently unfolding story"). In fact, the Attorney General declassified the number of times the provision has been used in an attempt, as he acknowledged, to "counter the troubling amount of public distortion and misinformation in connection with Section 215." (Pls.' Cross-mot. Ex. A, Attach. 3 [Mem. for FBI Director Robert S. Mueller from the Attorney General].) By finding that declassification was "in the public interest," and in the best interest of law enforcement since "[p]ublic confidence in law enforcement is of paramount importance" (id.), the Attorney General implicitly, if not explicitly, recognized that information relating to section 215 implicates a matter of current exigency.

  Moreover, a principle aim of plaintiffs' FOIA request is to provide information for "the ongoing national debate about whether Congress should renew Section 215 and other Patriot Act surveillance provisions before they expire in December 2005." (Pls.' Cross-mot, at 16.) Plaintiffs contend that information about the way that the FBI has implemented and used the provision is required now to inform this debate, and that if plaintiffs' request is relegated to the ordinary processing queue, production of responsive information would not occur before June 2005. (See Hardy Decl. ¶ 31.) Pending legislative proposals to amend the Patriot Act, plaintiffs argue, also require disclosure of current practices under the Act. The government takes a piecemeal approach to plaintiffs' "compelling need" showing. It parses language from Al-Fayed, arguing that "newsworthiness alone" does not make a matter one of "current exigency," see 254 F.3d at 310,*fn7 that the "public's right to know" is insufficient by itself to satisfy the statutory standard, see id., and that sunset provisions or discussions of new legislation do not establish urgency, because otherwise every FOIA request related to pending legislation would be entitled to expedited processing.*fn8 While the government may well be correct that any one of plaintiffs' justifications standing alone is insufficient to demonstrate a "compelling need," ...


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