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Electronic Frontier Foundation v. Dep't of Justice

May 7, 2007

ELECTRONIC FRONTIER FOUNDATION, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This case comes before the Court on a motion by Defendant Department of Justice ("DOJ" or "Defendant"), on behalf of the Federal Bureau of Investigation ("FBI"), for a stay pursuant to Open America v. Watergate Special Prosecution, 547 F.2d 605 (D.C. Cir. 1976). Plaintiff Electronic Frontier Foundation ("EFF"), seeks agency records pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and opposes Defendant's request for a stay. The requested records pertain to DCS-3000 and Red Hook, two tools that the FBI has developed to conduct electronic surveillance. Pursuant to the instant motion, DOJ seeks a stay of 27 months -- through May of 2009 -- which DOJ asserts would provide the FBI sufficient time to complete the necessary review and release of records. Upon searching consideration of Defendant's Motion, memoranda, and supporting declaration, Plaintiff's Opposition and supporting declaration, Defendant's Reply, and the relevant case law, the Court shall grant-in-part Defendant's motion for an Open America stay. Specifically, the Court shall stay the proceedings in this matter for one year, until May 9, 2008, with the possibility that the Court may grant an extension of the stay if DOJ demonstrates that such an extension is warranted. In addition, during the pendency of the stay, DOJ shall makeinterim releases of material responsive EFF's FOIA request every four (4) weeks, and shall file status reports with the Court every 90 days regarding the overall progress of its review and release of records.

I. BACKGROUND

Plaintiff Electronic Frontier Foundation is a not-for-profit corporation that works to inform policymakers and the general public about civil liberties issues related to technology. Compl. ¶ 3. According to EFF, in July 2000, the Wall Street Journal reported that the FBI had deployed a surveillance system, known as "Carnivore" and later as DCS-000, which monitored traffic at Internet service provider facilities to intercept information in the electronic mail of criminal suspects. Id. ¶ 5. EFF further asserts that this system "raised substantial concerns on the part of Congress and the general public about the potential over-collection of personal information in the course of FBI surveillance;" however, reports subsequently submitted to Congress revealed that the FBI did not use DCS-1000 to conduct Internet surveillance in fiscal years 2002 or 2003. Id. ¶¶ 5-6; Ans ¶ 6. In March 2006, the DOJ Inspector General issued a report concerning the implementation of the Communications Assistance for Law Enforcement Act ("CALEA"), which contained information about two other electronic surveillance systems developed by the FBI, stating:

System DCS-3000. The FBI has spent nearly $10 million on this system. The FBI developed the system as an interim solution to intercept personal communications services delivered via emerging digital technologies being used by wireless carriers in advance of any CALEA solutions being deployed. Law enforcement continues to utilize this technology as carriers continue to introduce new features and services.

Red Hook. The FBI has spent over $1.5 million to develop a system to collect voice and data calls and then process and display the intercepted information in the absence of a CALEA solution.

Compl. ¶ 7; Ans. ¶ 7.

By letter dated August 11, 2006, EFF submitted a FOIA request to the FBI, seeking "all agency records (including, but not limited to, electronic records) concerning electronic surveillance systems known as DCS-3000 and Red Hook." 2/9/07 Decl. of David M. Hardy (hereinafter "Hardy Decl."), Ex. A (8/11/06 Letter from M. Hoffman to D. Hardy).*fn1 By letters dated August 22, 2006, the FBI acknowledged receipt of EFF's FOIA request and assigned separate numbers to EFF's requests for documents regarding DCS-3000 and Red Hook. Hardy Decl., Ex. B (8/22/06 Letters from D. Hardy to M. Hoffman). The FBI searched the main files of its Central Records System ("CRS") for records responsive to EFF's request at FBI headquarters,*fn2 and located no records responsive to EFF's DCS-3000 request and one file responsive to EFF's Red Hook request. Hardy Decl. ¶ 36.*fn3 In addition, the FBI circulated an electronic communication to the divisions and offices within FBI headquarters that were deemed most likely to possess potentially responsive records, and individuals within those divisions and offices accordingly searched their files for records responsive to EFF's request. Id. ¶ 37.*fn4 As a result of these search efforts, the FBI has located approximately 20,000 pages of records potentially responsive to EFF's request. Id.

On October 3, 2006, having failed to receive any documents responsive to its FOIA request within the 20-working-day time frame mandated by the FOIA, EFF filed its Complaint in this action. Compl. ¶ 11; Pl.'s Opp'n at 5. EFF was subsequently notified of the volume of records potentially responsive to its FOIA request and, on December 16, 2007 and January 9, 2007, counsel for EFF spoke with a RIDS representative about the possibility of EFF's narrowing its FOIA request. Hardy Decl., Ex. D (1/9/07 Letter from D. Hardy to M. Hoffman); 3/14/07 Decl. of Marcia Hoffman (hereinafter "Hoffman Decl.") ¶ 3*fn5 ; Def.'s Mot. at 10. The RIDS representative broadly described the categories of potentially responsive records and asked whether EFF would be willing to narrow its FOIA request by removing any of these categories from the scope of its request. Hoffman Decl. ¶¶ 4-6; Hardy Decl., Ex. D. Counsel for EFF declined to do so "because the number of potentially responsive pages was so indefinite, and because [she] was unwilling to remove broad categories of documents from the scope of the request without a better understanding of their content." Hoffman Decl. ¶ 8; Hardy Decl., Ex. D.

On February 9, 2006, DOJ moved this court for a stay pursuant to the grounds set forth in Open America, 547 F.2d 605.In support of its motion, DOJ claims that although the FBI is exercising due diligence in responding to EFF's FOIA request, exceptional circumstances prevent it from processing the request within the statutory time limit. Def.'s Mot. at 1. DOJ further asserts that the FBI is processing EFF's request in accordance with its established first-in/first-out policies,*fn6 and that FBI is making substantial efforts to reduce -- and has achieved significant reductions in -- its backlog and processing time for FOIA requests. Id. at 2, 12-13 (citing Hardy Decl. ¶¶ 5-7). DOJ specifically claims that it is prevented from processing EFF's request more quickly because the FBI experienced a significant increase in FOIA requests in 2006, id. at 12-13 (citing Hardy Decl. ¶ 7), and because RIDS is facing several urgent and competing federal district court litigation deadlines as well as a high volume of administrative appeals, both of which require the diversion of resources from the processing of FOIA requests such as EFF's, id. at 16-17 (citing Hardy Decl. ¶¶ 10, 15-20).

In addition, DOJ asserts that the FBI is facing unprecedented personnel shortages as a result of the physical relocation of a portion of RIDS' operations to Frederick County, Virginia. Id. at 14-16 (citing Hardy Decl. ¶¶ 9-14). According to DOJ, the FBI has undertaken two efforts that it expects will eventually reduce its processing times for FOIA/Privacy Act requests by 40%:

(a) development of the electronic investigative case file (the "Sentinel Project") and (b) establishment of an FBI Central Records Complex. Id. at 14 (citing Hardy Decl. ¶ 9). The FBI has begun designing and building a new Central Records Complex in Frederick County, Virginia, and has begun relocating RMD sections -- including those consisting of the most senior and experienced RIDS employees -- to interim sites within Frederick County, which is approximately 90 miles outside of Washington, D.C. Id. at 14-15 (citing Hardy Decl. ¶¶ 10-13). However, many RIDS employees have decided not to transfer with their unit function to Frederick County, and a total of 58 former RIDS employees have either resigned, retired, or found other jobs in the Washington, D.C. area, rather than relocate. Id. at 15 (citing Hardy Decl. ¶ 13). DOJ asserts that the FBI is engaged in aggressive and intensive recruitment efforts in Frederick County, Virginia, but that RIDS remains 115 positions under its funded staffing level, and may not be able to hire any new employees in the immediate future due to a federal government hiring freeze. Id. at 15-16 (citing Hardy Decl. ¶ 14). In any event, DOJ notes, new employees take an average of three years to be able to work as efficiently as experienced employees. Id. at 16 (citing Hardy Decl. ¶ 14). DOJ additionally argues that EFF's refusal to narrow the scope of its FOIA request weighs in favor of granting a stay. Def.'s Mot. at 22-23.

Plaintiff opposes an Open America stay, arguing that DOJ has failed to show exceptional circumstances sufficient to justify a stay, Pl.'s Opp'n at 9-11, and that the FBI has not exercised due diligence in processing EFF's request, id. at 12-13. EFF asserts that, rather than being granted a stay, the FBI should be ordered to complete processing of EFF's FOIA request within sixty (60) days. Id. at 13-14. EFF also argues that, if the Court permits DOJ additional time to process EFF's request, the FBI should be ordered to make interim releases of responsive material ...


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