The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
The case presents the question of whether Plaintiff Electronic
Privacy Information Center ("EPIC") is entitled to expedited
processing of its request for records filed pursuant to the
Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1996 & West
Supp. 2004). After consideration of the parties' cross-Motions
for Partial Summary Judgment, their briefs, and the relevant law,
the Court determines that Defendant Department of Defense ("DOD")
appropriately denied Plaintiff's request for expedited
processing. Plaintiff's request for records shall be considered
according to DOD's standard "first-in, first-out" procedure.
Plaintiff Electronic Privacy Information Center is a public
interest research organization engaged in the review of federal
law enforcement activities and policies in order to consider
their possible impact on civil liberties and privacy interests.
Compl. ¶ 3. Defendant Department of Defense is an agency within
the executive branch of the United States Government, and the
Defense Intelligence Agency ("DIA") is a component of DOD. Id.
On May 21, 2004, EPIC filed a request under FOIA with the DIA
"seeking all agency records (including but not limited to electronic records)
concerning [DIA] use of a program or system known as `Verity K2
Enterprise' for the purpose of analyzing intelligence and
detecting terrorist activities." Pl.'s Mot. for Partial Summ. J.
("Pl.'s Mot.") Ex. 3 (FOIA Request) at 1. As part of this
communication, Plaintiff requested that its application be
considered on an expedited basis. See id. at 1-2. Plaintiff
articulated its position that its request met the requirements
for expedited processing under the applicable DOD regulations.
Id. at 1 (citing 32 C.F.R. § 286). In particular, EPIC stated
that "the government activity at issue here use of data mining
technology to detect potential terrorist activity" was
"particularly timely" because of the release of a DOD Technology
and Privacy Advisory Committee ("TAPAC") report, and the
publication of two articles in the New York Times. Id. at 1-2.
After receiving no response to its request for expedited
processing, EPIC filed the instant suit on July 20, 2004, seeking
to compel DOD and DIA to process and release the requested
records on an expedited basis. Pl.'s Mot. at 6. Subsequently, on
August 13, 2004, DIA denied Plaintiff's request for expedited
processing.*fn1 Id. at 6, Ex. 7 (DIA denial letter).
The Freedom of Information Act confers jurisdiction on this
Court to review an agency denial of expedited processing of a
FOIA request. See 5 U.S.C. § 552(a)(6)(E)(iii) ("Agency action
to deny or affirm denial of a request for expedited processing . . .
shall be subject to judicial review under paragraph (4),
except that the judicial review shall be based on the record before the agency at the time of the determination."). The Court
considers such agency action under de novo review. See
5 U.S.C. 552(a)(4)(B) ("On complaint, the district court . . . has
jurisdiction to enjoin the agency from withholding agency records
and to order the production of any agency records improperly
withheld from the complainant. In such a case the court shall
determine the matter de novo . . ."); see also Al-Fayed v. CIA,
254 F.3d 300, 301 (D.C. Cir. 2001) ("We conclude that district
courts must review [denials of expedited processing under FOIA]
de novo rather than defer to agency determinations.").
A. Applicable Statutory and Regulatory Language
Under the FOIA, a party may seek expedited processing and
release of requested records, rather than awaiting processing
under the standard "first-in, first-out" procedure. The Act
states that "[e]ach agency shall promulgate regulations . . .
providing for expedited processing of requests for records (I)
in cases in which the person requesting the records demonstrates
a compelling need; and (II) in other cases determined by the
agency." 5 U.S.C. § 552(a)(6)(E)(i)(I)-(II). "Compelling need" is
defined in the FOIA to mean "that a failure to obtain requested
records on an expedited basis . . . could reasonably be expected
to pose an imminent threat to the life or physical safety of an
individual," or "with respect to a request made by a person
primarily engaged in disseminating information, urgency to inform
the public concerning actual or alleged Federal Government
activity." 5 U.S.C. § 552(a)(6)(E)(v)(I)-(II).
The Department of Defense regulations specify that "a separate
queue shall be established for requests meeting the test for
expedited processing." 32 C.F.R. § 286.4(d)(3). Those requesting
expedited consideration are to be notified "within 10 calendar
days" of DOD's determination of whether to grant expedited processing. Id. The
regulations indicate that "[e]xpedited processing shall be
granted to a requester after the requester requests such and
demonstrates a compelling need for the information." Id. A
requester can demonstrate a "compelling need" by showing "that
the information is urgently needed by an individual primarily
engaged in disseminating information in order to inform the
public concerning actual or alleged Federal Government Activity."
32 C.F.R. § 286.4(d)(3)(ii). In order to show that information is
"urgently needed," the requester must show "that the information
has a particular value that will be lost if not disseminated
quickly," which "[o]rdinarily . . . means a breaking news story
of general public interest." 32 C.F.R. § 286.4(d)(3)(ii)(A).
B. EPIC has Failed to Demonstrate that its FOIA Request Should
For purposes of the instant motions, Defendant "does not
dispute . . . that EPIC is `a person primarily engaged in
disseminating information,'"*fn2 and does not dispute that
"DIA use of Verity K2 Enterprise software would be `an actual or
alleged Federal Government activity.'" Def.'s Mot. for Partial
Summ. J. ("Def.'s Mot.") at 6. The question presented to the
Court, then, is whether EPIC's request for ...