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ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF DEFENSE

December 8, 2004.

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
DEPARTMENT OF DEFENSE, Defendant.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

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.

I. FACTUAL BACKGROUND

  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).

  II. LEGAL STANDARD

  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.").

  III. DISCUSSION

  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 be Expedited

  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 ...


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