United States District Court, D. Columbia
[Copyrighted Material Omitted]
Electronic Frontier Foundation, Plaintiff: David L. Sobel,
LEAD ATTORNEY, ELECTRONIC FRONTIER FOUNDATION, Washington, DC
Department of Justice, Defendant: Jacqueline E. Coleman
Snead, Rodney Patton, LEAD ATTORNEYS, U.S. DEPARTMENT OF
JUSTICE, Civil Division, Washington, DC USA.
M. COLLYER, J.
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.
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.
granted EFF's request for expedited processing on April
10, 2014, 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 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. EFF is aware of the holding
of the Section 1809 Opinion because it was referenced in an
October 3, 2011 FISC opinion 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.
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].
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.
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