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Elec. Frontier Found. v. DOJ

United States District Court, D. Columbia

October 30, 2015


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[Copyrighted Material Omitted]

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          For Electronic Frontier Foundation, Plaintiff: David L. Sobel, LEAD ATTORNEY, ELECTRONIC FRONTIER FOUNDATION, Washington, DC USA.

         For Department of Justice, Defendant: Jacqueline E. Coleman Snead, Rodney Patton, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC USA.



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          Plaintiff Electronic Frontier Foundation seeks the production of an opinion of the Foreign Intelligence Surveillance Court under the Freedom of Information Act. The document is exempt from disclosure under Exemptions 1 and 3 because the opinion is properly classified and because its disclosure is prohibited by statute. Summary judgment will be entered in favor of the Department of Justice.

         I. FACTS

         Electronic Frontier Foundation (EFF) is a non-profit corporation whose mission is to inform policymakers and the public about civil liberty issues related to technology and to defend such liberties. Compl. [Dkt. 1] ¶ 4. " In support of its mission, EFF uses the Freedom of Information Act to obtain and disseminate information concerning the activities of federal agencies." Id. EFF submitted four requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the National Security Division of the Department of Justice (DOJ):

(1) August 23, 2013 request seeking disclosure of two Foreign Intelligence Surveillance Court (FISC) opinions;
(2) October 31, 2013 request seeking disclosure of two FISC opinions and associated documents;
(3) February 24, 2014 request seeking disclosure of any still secret Foreign Intelligence Court of Review (FISCR) decisions and any opinion and orders of the U.S. Supreme Court in any matter appealed from the FISCR; and
(4) March 14, 2014 request seeking disclosure of three separate FISC opinions and related documents.

         DOJ granted EFF's request for expedited processing on April 10, 2014,[1] and EFF filed this suit on May 1, 2014. DOJ produced various documents, and EFF withdrew most of its requests. At this point, EFF challenges only the withholding of a single document--a specific FISC opinion.[2]

         The opinion in question, referred to here as the Section 1809 Opinion, held that 50 U.S.C. § 1809(a)(2) precluded the FISC from approving the Government's proposed use of certain data acquired by the National Security Agency (NSA) without statutory authority through " Upstream" collection.[3] EFF is aware of the holding

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of the Section 1809 Opinion because it was referenced in an October 3, 2011 FISC opinion[4] that was released to EFF in the course of a different FOIA lawsuit-- Electronic Frontier Foundation v. DOJ, 57 F.Supp.3d 54 (D.D.C. 2014). In that FOIA suit, Judge Amy Berman Jackson held that DOJ properly withheld the citation to the Section 1809 Opinion because the information was classified and exempt from disclosure under FOIA Exemption 1. Id. at 61.

         DOJ seeks summary judgment on the ground that the Section 1809 Opinion is subject to withholding under Exemptions 1 and 3. See Mot. for Summ. J. [Dkt. 15] (MSJ); DOJ Reply [Dkt. 18]. EFF filed a cross motion for partial summary judgment. See Cross Mot. for Summ. J. [Dkt. 17] (XMSJ); EFF Reply [Dkt. 20].


         FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009). Federal Rule of Civil Procedure 56 provides that summary judgment must be granted when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who " after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than " the mere existence of a scintilla of evidence" in support of its position. Id. at 252.

         In a FOIA case, the burden is on the agency to sustain its action and the district court must decide de novo whether an agency properly withheld information under a claimed exemption. 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981); Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251, 184 U.S.App.D.C. 350 (D.C. Cir. 1977). " The underlying facts are viewed in the light most favorable to the [FOIA] requester," Weisberg v. U.S. Dep't of Justice, 705 F.2d ...

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