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Electronic Privacy Information Center v. Federal Bureau of Investigation

United States District Court, District of Columbia

March 28, 2013

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant

Page 43

For ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff: Ginger P. McCall, Marc Rotenberg, ELECTRONIC PRIVACY INFORMATION CENTER, Washington, DC.

For FEDERAL BUREAU OF INVESTIGATION, Defendant: Kimberly Lynn Herb, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

Page 44

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

Plaintiff Electronic Privacy Information Center, or EPIC, filed suit against the Federal Bureau of Investigation, seeking injunctive relief under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. After EPIC submitted a request for documents relating to the use of cell-site simulator technology to the FBI, EPIC filed suit alleging that the FBI failed to comply with the statutory deadlines to respond to EPIC's FOIA request. Presently before the Court is the FBI's [14] Motion for an Open America Stay. Upon consideration of the pleadings,[1] the relevant legal authorities, and the record as whole, the Court finds the FBI has not demonstrated exceptional circumstances exist so as to warrant the fourteen-month stay of proceedings requested by the FBI. Accordingly, the FBI's motion is DENIED. This case shall proceed in accordance with the Order accompanying this Memorandum Opinion.

I. BACKGROUND

According to the Complaint, EPIC is a " public interest research organization incorporated as a not-for profit corporation in Washington, D.C. EPIC[] conducts oversight of Government activities and policies and analyzes their impact on civil liberties and privacy interests." Compl., ECF No. [1], ¶ 4. On February 10, 2012, EPIC submitted a FOIA request to the FBI requesting agency records regarding cell-site simulator or " StingRay" technology,[2] which EPIC asserts is used by the FBI and other federal agencies to track and locate cellular telephones and other wireless devices. See id. at ¶ ¶ 6-7. The request specifically sought:

o " All documents concerning technical specifications of the StingRay device or other cell-site simulator technologies" ;
o " All documents concerning procedural requirements or guidelines for the use of StingRay device or other cell-site simulator technologies (e.g. configuration, data retention, data deletion)" ;
o " All contracts and statements of work that relate to StingRay device or other cellsite simulator technologies" ; ? " All memoranda regarding the legal basis for the use of StingRay device or other cell-site simulator technologies" ; and
o " All Privacy Impact Assessments or Reports concerning the use or capabilities of StingRay device or other cell-site simulator technologies."

Id. at ¶ 20. EPIC asked the FBI to expedite its response to the request, grant EPIC " News Media" fee status, and waive all duplication fees. Id. at ¶ ¶ 21-23.

The FBI acknowledged receipt of EPIC's request on February 16, 2012 and assigned the request a tracking number. Answer, ECF No. [11], ¶ 25. On March 20, 2012, having received no further correspondence from the FBI regarding its request, EPIC filed an administrative appeal with the Office of Information Policy, part of the Department of Justice. Compl. ¶ ¶ 30-31. According to EPIC, the Department of Justice failed to respond to ...


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