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Electronic Privacy Information Ctr. v. Department of Justice

United States District Court, D. Columbia.

February 11, 2014


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[Copyrighted Material Omitted]

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For DEPARTMENT OF JUSTICE, Defendant: Steven Y. Bressler, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.


KETANJI BROWN JACKSON, United States District Judge.

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In early October of 2013, plaintiff Electronic Privacy Information Center (" EPIC" ) submitted a document request to defendant Department of Justice (" DOJ" ) under the Freedom of Information Act (" FOIA" ) seeking records regarding a national security program that involves the United States government's surreptitious use of certain devices to collect communications information. EPIC asked DOJ to expedite the processing of its FOIA request, which DOJ agreed to do. But after forty-two business days elapsed and DOJ had not responded to EPIC's FOIA request, much less produced the requested records, EPIC filed the instant lawsuit along with a motion for a preliminary injunction, requesting that the Court compel DOJ to process its request immediately and provide responsive documents within 20 days of the Court's order.

Before this Court at present is EPIC's preliminary injunction motion. EPIC argues that because DOJ did not respond to its FOIA request within the 20-day time frame that FOIA prescribes for non-expedited cases, DOJ is not in fact expediting EPIC's document request, and EPIC is therefore entitled to a preliminary and permanent injunction compelling DOJ to disclose the records forthwith. DOJ responds that EPIC is not entitled to immediate production of the records because the agency has complied with FOIA's requirements for processing expedited requests--it has moved EPIC's request ahead of all non-expedited requests in its FOIA queue and is working to process the request as soon as practicable, which is taking longer than 20 days.

This Court has considered the complaint, the parties' briefs on the motion for a preliminary injunction, the arguments made at the preliminary injunction hearing, and the applicable law, and for the reasons explained below, the Court concludes that EPIC has failed to establish a likelihood of success on the merits of its argument that the organization is entitled to the injunctive relief it seeks. Moreover, EPIC has fallen short of demonstrating that it will suffer irreparable harm if this Court does not order DOJ to produce responsive records now, and the Court is not convinced that the balance of harms and public interest factors weigh in EPIC's favor, particularly in light of the classified nature of the documents at issue. Consequently, the Court concludes that EPIC's motion for a preliminary injunction must be DENIED.


A. Facts Alleged In The Complaint

EPIC is " a public interest research organization incorporated as a not-for-profit corporation in Washington, D.C." (Complaint for Injunctive Relief (" Compl." ), ECF No. 1, ¶ 4.) According to the complaint, EPIC performs the following work:

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EPIC conducts oversight of government activities and policies and analyzes their impact on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports, and a bi-weekly electronic newsletter. EPIC also maintains a popular Internet site,, which contains extensive information on current privacy issues, including documents obtained from federal agencies under the FOIA. EPIC routinely and systematically disseminates information to the public through its website and other media outlets.


On October 3, 2013, EPIC mailed a FOIA document request (" FOIA Request" ) to the National Security Division of DOJ (" NSD" ) via certified mail, which the NSD's FOIA office officially received on October 18, 2013. ( Id. ¶ 16; see also Mem. in Support of P.'s Mot. for a Prelim. Inj. (" PI Mem." ), Ex. B, Letter from Arnetta Mallory to Amie Stepanovich, dated Oct. 29, 2013 (" NSD Acknowledgement" ), ECF No. 3-3.) The FOIA Request explained that EPIC was seeking copies of reports that the Attorney General had submitted to Congress pursuant to the Foreign Intelligence Surveillance Act (" FISA" ), 50 U.S.C. § 1846, for the past 12 years--reports that, according to EPIC, summarize " all uses of pen registers and trap and trace devices obtained under the FISA[,]" and " include the number of applications granted and the number of applications modified under the FISA, as well as the total number of installations approved and denied under emergency circumstances." (PI Mem., Ex. A, Letter from Amie Stepanovich to Arnetta James, dated Oct. 3, 2013, ECF No. 3-2, at 3.)[1] The FOIA Request specified that EPIC was seeking " all records related to the Attorney General's required semiannual reports between 2001 and present" ( id. ), and in particular, the following three categories of documents:

1. all reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843[; ]
2. all information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices;
3. all records used in preparation of the above materials, including statistical data.

(Compl. ¶ 18.) As part of the FOIA Request, EPIC asked DOJ to waive all duplication fees pursuant to 5 U.S.C. § 552(a)(4)(A). ( Id. ¶ ¶ 19-20.) EPIC also requested expedited processing of the FOIA Request because EPIC is " 'primarily engaged in disseminating information[]'" and its document request related to a matter about which there is an " 'urgency

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to inform the public about an actual or alleged federal government activity.'" ( Id. ¶ 21 (quoting 5 U.S.C. § 552(a)(6)(E)(v)(II)).)

On October 29, 2013, seven business days after receiving the FOIA Request, the NSD sent EPIC a letter acknowledging its receipt of the request. ( Id. ¶ 22; see also NSD Acknowledgement (noting that " [o]ur policy is to process FOIA requests on a first-in, first-out basis[,]" and that " every effort will be made to respond to your request as quickly as possible" but the " processing time will depend upon the complexity of the request, whether it involves sensitive or voluminous records, and whether consultations with other agencies or agency components are appropriate" ).) The NSD followed up with a second letter on November 5, 2013, which explained that the agency was granting EPIC's requests for a fee waiver and expedited processing. (Compl. ¶ ¶ 23-24; see also PI Mem., Ex. C, Letter from Arnetta Mallory to Amie Stepanovich, dated Nov. 5, 2013, ECF No. 3-4.) The November 5th letter was the last communication that EPIC received from the NSD or DOJ regarding the FOIA Request before December 19, 2013, which is the date on which EPIC filed the instant complaint. (Compl. ¶ 26.)

EPIC's complaint contains two counts. Count I is captioned: " Violation of FOIA: Failure to Comply with Statutory Deadlines," and asserts that " DOJ's failure to respond to [the FOIA] Request violated the statutory deadline imposed by the FOIA set forth in 5 U.S.C. § 552 (a)(6)(A)(ii) and (a)(6)(E)(iii) (2013)." ( Id. ¶ 32.) Count II is captioned: " Violation of FOIA: Unlawful Withholding of Agency Records" ; that count maintains that " EPIC and the public have been denied access to responsive agency records to which the parties are lawfully entitled under the FOIA, 5 U.S.C. § 552(a)(3)(A)." ( Id. ¶ 37.) The complaint states that each of these alleged violations independently entitles EPIC " to injunctive relief compelling the immediate disclosure of the requested agency records," ( id. ¶ 34; see also id. ¶ 39), and in its prayer for relief, EPIC specifically requests that this Court:

A. order Defendant to promptly immediately [sic] process responsive agency records;
B. order Defendant to disclose all responsive agency records in their entirety and make copies available to EPIC[; ]
C. award Plaintiff its costs and reasonable attorneys' fees incurred in this action pursuant to 5 U.S.C. ...

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