United States District Court for the District of Columbia
December 8, 2004.
ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
DEPARTMENT OF DEFENSE, Defendant.
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.
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.").
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 expedited
consideration demonstrated an "urgency to inform the public" of
DIA's use of the Verity K2 Enterprise software program.
In order to determine whether Plaintiff has demonstrated an
"urgency to inform," and hence "compelling need," the Court
generally considers factors set forth by the District of Columbia
Circuit Court in Al-Fayed v. CIA, 254 F.3d 300 (D.C. Cir.
2001).*fn3 These are first, "whether the request concerns a matter of current exigency to the
American public," second, whether the consequences of delaying a
response would compromise a significant recognized interest," and
third, "whether the request concerns federal government
activity." Id. at 310; see also ACLU v. Dep't of Justice,
321 F. Supp. 2d 24, 29 (D.D.C. 2004). Although Defendant does not
dispute this third factor, Plaintiff has nevertheless failed to
demonstrate the requisite "urgency to inform."
The Court's resolution of the issue presented is
straightforward. Fatal to EPIC's request for expedited treatment
is the failure in its original FOIA to demonstrate that there is
any current public interest in the specific subject of that
request. EPIC requested "all agency 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. Ex. 3 (FOIA Request) at 1. However,
Plaintiff's argument for expedited processing included in the
FOIA request demonstrates only public interest in the subject of
data mining in general.*fn4 EPIC presented the agency with two articles from the New York Times focusing on a
report by DOD's Technology and Privacy Advisory Committee
entitled "Safeguarding Privacy in the Fight Against Terrorism."
See Pl.'s Mot. Ex. 3 (FOIA Request) at 1-2; see also id. Ex.
1 (TAPAC Report); id. Ex. 4 (Pear Article) ("Panel Urges New
Protection On Federal `Data Mining'"); id. Ex. 5 (Safire
Editorial) ("Security With Liberty").
Plaintiff's request quoted the TAPAC report stating that the
Committee members "believe rapid action is necessary to address
the host of government programs that involve data mining
concerning U.S. persons. . . ."*fn5 Id. Ex. 3 (FOIA
Request) at 2 (emphasis added by Plaintiff). However, Plaintiff
does not argue that the TAPAC report discusses the Verity K2
Enterprise software specifically. The two New York Times articles
cite to the TAPAC report, and like the report address data mining
in general, but do not mention Verity K2 Enterprise as a specific
software program utilized in the data mining process. Indeed, the
articles make no mention of any specific program used in data
mining, and the TAPAC report indicates that there are a "host" of
The case law makes it clear that only public interest in the
specific subject of a FOIA request is sufficient to weigh in
favor of expedited treatment. In Al-Fayed, the Circuit Court
rejected a request to expedite requests for information related
to the deaths of Princess Diana and Dodi Al Fayed. Al Fayed,
254 F.3d 300. The Circuit Court rejected one of the plaintiffs'
requests because, although the particular issue of a fraud scheme
was current (despite the deaths having occurred some years before), the plaintiffs had failed to
demonstrate that there was "any evidence in the record that there
is substantial interest, either on the part of the American
public or the media, in this particular aspect of plaintiffs'
allegations." Id. at 311. Although the Court of Appeals found
that the deaths remained "newsworthy," and that the specific
fraud scheme was a current issue (as opposed to the issue of the
deaths themselves which was no longer a "currently unfolding
story"), the fact that the plaintiffs failed to demonstrate
public interest in the fraud scheme proved fatal to this portion
of plaintiffs' request for expedition. Id. at 310-311.
In the instant case, Plaintiff similarly failed to present the
agency with evidence that there is "substantial interest" in the
"particular aspect" of Plaintiff's FOIA request. The fact that
Plaintiff has provided evidence that there is some media interest
in data mining as an umbrella issue does not satisfy the
requirement that Plaintiff demonstrate interest in the specific
subject of Plaintiff's FOIA request, the Verity K2 Enterprise
software program.*fn6 Indeed, the instant case can readily
be distinguished from another case in this District Court where
expedited consideration of a FOIA request was granted. See
ACLU, 321 F. Supp. 2d 24. In that case, the plaintiffs sought
information about a specific section of the USA Patriot Act. In
finding that the plaintiffs were entitled to expedited treatment
of their request, Judge Ellen Segal Huvelle noted that the
plaintiffs had provided evidence of media interest in the
specific section at issue. See id. at 30 n. 6 ("The articles cited by plaintiffs in their request
for expedited processing reflect not only the public concern
regarding the [Patriot] Act but also address section 215
specifically."). Plaintiff attempts to obfuscate Judge Huvelle's
decision by characterizing it as finding significant public
interest "where the plaintiffs could point to a `handful' of news
articles, some of which concerned the USA Patriot Act generally
rather than Section 215 of the USA Patriot Act specifically."
Pl.'s Opp. & Reply at 5 (citation omitted). However, the Court is
unpersuaded by Plaintiff's inference, because the fact remains
that the plaintiff in Judge Huvelle's case had also presented
articles indicating interest in the specific section as well.
Plaintiff here has made no such showing.
Furthermore, Plaintiff itself provides evidence that there are
a significant number of data mining programs like Verity K2
Enterprise, see Pl.'s Mot. Ex. 2 (GAO Report), which weighs
against finding that an interest in data mining in general should
be construed to indicate an interest in Verity K2 Enterprise
specifically. The report of the General Accounting Office
indicated that federal agencies use data mining for a range of
purposes, and consolidated information on data mining programs in
use by these agencies.*fn7 The report indicated that DIA utilizes the Verity K2 Enterprise software program for data
mining purposes. Pl.'s Mot. Ex. 2 (GAO Report) at 9, 30. However,
the report also indicated that 52 agencies use or plan to use
data mining, comprised of 199 data mining efforts. Id. at 2.
Defendant notes that of these 199 data mining efforts, 40 were by
DOD agencies. See Def.'s Mot. at 13 n. 10 (citing Pl.'s Mot.
Ex. 2 (GAO Report) at 29-36). Given these numbers, the Court is
unwilling to construe interest in the larger concept to indicate
interest in any one specific data mining program. To do so would
open the door to permitting the expedition of any request
addressing any one of the 199 data mining efforts. This is
clearly the sort of result the Court of Appeals cautioned against
when it stated that "prioritizing all requests would effectively
prioritize none." Al-Fayed, 254 F.3d at 310.
Finally, Defendant points out that DIA's use of Verity software
has been public knowledge since at least December 2002, and that
news organizations including the New York Times, Reuters and the
parent companies of the Wall Street Journal and CBS use Verity
software. See Def.'s Reply at 4. The fact that such news
organizations would have had this information available to them,
and yet published nothing addressing Verity software and its
possible data mining capabilities, cuts against Plaintiff's
argument that public interest extends to the Verity K2 Enterprise
program that is the subject of Plaintiff's FOIA request.
Similarly, Plaintiff has provided no evidence indicating that the
GAO report or its reference to Verity K2 Enterprise have
generated public interest in the interim.
The Circuit Court has made clear its position that expedition
of FOIA requests is to be sparingly granted. "`Given the finite
resources generally available for fulfilling FOIA requests,
unduly generous use of the expedited processing procedure would
unfairly disadvantage other requestors who do not qualify for its treatment.'" Al-Fayed,
254 F.3d at 310 (quoting H.R. Rep. No. 104-795, at 26 (1996)).
The Court of Appeals further remarked: "Indeed, an unduly
generous approach would also disadvantage those requesters who do
qualify for expedition, because prioritizing all requests would
effectively prioritize none." Id. It is neither the Court's nor
the agency's responsibility to connect the dots for plaintiffs
such as EPIC, by presuming that interest in a general topic
necessarily indicates interest in a specific subpart of that
topic. Indeed, in addition to being beyond the mandate of the
Court or agency, it might well prove irresponsible. Although the
leap between public interest in data mining in general and
interest in Verity K2 Enterprise software in particular may
appear obvious to Plaintiff, in the absence of evidence
demonstrating as much, the Court cannot assume that such evidence
(or such interest) exists. In light of this Circuit's position
that expedition is to be sparingly granted because granting one
request effectively forces other FOIA requestors further down in
the queue, the Court is unable to overlook the absence of
evidence supporting Plaintiff's request for expedition.
After a careful examination of the parties' cross-Motions for
Partial Summary Judgment, the Court finds that Plaintiff's FOIA
request and expedition request do not indicate an urgency to
inform the public of information concerning Verity K2 Enterprise
software. Accordingly, the Court finds that Defendant's Motion
shall be granted, and Plaintiff's Motion shall be denied.