Electronic Frontier Foundation v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
ELECTRONIC FRONTIER )
FOUNDATION )
)
Plaintiff, )
)
v. ) Civil Action No. 12-01441 (ABJ)
)
DEPARTMENT OF JUSTICE, )
)
Defendants )
____________________________________)

MEMORANDUM OPINION

Pending before the Court are defendant Department of Justice’s renewed motion for

summary judgment and plaintiff Electronic Frontier Foundation’s cross-motion for summary

judgment. Def.’s Mem. in Supp. of Def.’s Renewed Mot. for Summ. J. (“Def.’s Mem.”) [Dkt.

# 16-1]; Pl.’s Mot. for Summ. J. (“Pl.’s Mem.”) [Dkt. # 19]. The sole issue presented is whether

defendant properly redacted portions of an October 2011 Foreign Sovereign Intelligence Court

(“FISC”) Opinion that it produced in response to plaintiff’s Freedom of Information Act

(“FOIA”), 5 U.S.C. § 522 (2012), request. Defendant argued that the information is properly

redacted and withheld under FOIA Exemption 1 because it is classified or, alternatively, under

FOIA Exemption 3 because four statutes prohibit disclosure of that information. Def.’s Mem. at

12–26.

By the time the Court got involved in this matter, the legal opinion in question had been

almost entirely released to the public. After the parties filed their renewed motions for summary

judgment and again in July in response to questions posed by the Court, defendant notified the

Court that it would release some of the information that had been previously withheld, thereby
reducing the remaining number of contested redactions. Because the Court finds that defendant

met its burden to show that the very limited number of remaining redactions are proper under

FOIA Exemption 1, the Court will grant defendant’s motion for summary judgment and deny

plaintiff’s motion for summary judgment.

BACKGROUND

Plaintiff Electronic Frontier Foundation is a not-for-profit corporation that works to keep

the public informed about civil liberties issues relating to technology. Compl. ¶ 3 [Dkt. # 1].

On July 26, 2012, it submitted a FOIA request to defendant’s National Security Division

(“NSD”), asking for documents relating to the government’s collection of foreign intelligence

pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as

amended in 2008 by the FISA Amendment Act of 2008. 50 U.S.C. § 1881a et seq. (2012).

Plaintiff’s FOIA request came on the heels of the government’s decision in 2012 to declassify

four statements about its section 702 activities. Def.’s Mem. at 1.

Section 702 of U.S. Code title 50 provides the Attorney General of the United States and

the Director of National Intelligence with the authority to “authorize jointly, for a period of up

to 1 year from the effective date of the authorization, the targeting of persons reasonably

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believed to be located outside the United States to acquire foreign intelligence.”1 50 U.S.C.

§ 1881a(a). But before they may implement an authorization, the Attorney General and

Director of National Intelligence must submit to FISC a written certification and supporting

affidavit, attesting that the authorization complies with the limitations of section 1881a(b) as

well as the minimization procedures, targeting procedures, and compliance guidelines that have

been adopted. Id. § 1881a(g)(1)–(2)(A). If the FISC determines that the certification is lacking

in any way, it can order the government to correct any deficiency identified, or it can order the

government to “cease, or not begin, the implementation of the authorization for which [the]

1 This authority is not without limit. Subsection (b) provides:

An acquisition authorized under subsection (a) –

(1) may not intentionally target any person known at the time of acquisition to be
located in the United States;

(2) may not intentionally target a person reasonably believed to be located outside
the United States if the purpose of such acquisition is to target a particular,
known person reasonably believed to be in the United States;

(3) may not intentionally target a United States person reasonably believed to be
located outside the United States;

(4) may not intentionally acquire any communication as to which the sender and
all intended recipients are known at the time of the acquisition to be located in
the United States; and

(5) shall be conducted in a manner consistent with the fourth amendment to the
Constitution of the United States.

50 U.S.C. § 1881a(b). And subsection (c) requires the Attorney General, in consultation with the
Director of National Intelligence, to adopt and implement minimization procedures, targeting
procedures, and compliance guidelines to ensure that the government abides by the limitations
set in subsection (b). Id. § 1881a(c).

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certification was submitted.” Id. § 1881a(i)(3)(B)(i)–(ii). FISC creates a written explanation of

the reasons for its determination that it issues with every order it enters.2

Plaintiff hoped to obtain those written explanations and orders dealing with section 702,

as well as reports to Congress about those documents, through its 2012 FOIA request.

Specifically, plaintiff asked for the following categories of documents:

1. Any written opinion or order, as described in the statement quoted
above, in which “the Foreign Intelligence Surveillance Court held that
some collection carried out pursuant to the Section 702 minimization
procedures used by the government was unreasonable under the Fourth
Amendment;”

2. Any written opinion or order, as described in the statement quoted
above, reflecting or concerning a FISC determination that “the
government’s implementation of Section 702 of FISA has sometimes
circumvented the spirit of the law;” and,

3. Any briefing provided to the Senate Select Committee on Intelligence
or the House Permanent Select Committee on Intelligence concerning
the FISC opinions or orders, described in items (1) and (2) above.

Def.’s Statement of Material Facts not in Genuine Dispute (“Def.’s SOF”) ¶ 1 [Dkt. # 16-4]; see

also Pl.’s Statement of Material Facts not in Dispute & Resp. to Def.’s SOF (“Pl.’s SOF”) ¶ 1

[Dkt. # 19-5].

Approximately a month after submitting its FOIA request, plaintiff filed the complaint in

this case, seeking injunctive relief that would result in the expedited processing and release of

records responsive to its request. Compl. ¶ 1. The parties devised a processing and production

schedule and, on January 3, 2013, defendant notified plaintiff that it had located five responsive

documents:

2 Section 702 was supposed to sunset at the end of 2012, but Congress extended the FISA
Amendment Act of 2008 until December 31, 2017. See Pub. L. No. 112-238, 126 Stat. 1631
(2012).

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 an October 2011 FISC order;

the redacted copy of the same FISC order that was provided to Congress pursuant
to 50 U.S.C. § 1871;

a classified white paper prepared for Congress, only one paragraph of which was
responsive to plaintiff’s FOIA request;

a Joint Statement Before the Permanent Select Committee on Intelligence, U.S.
House of Representatives, one section of which was responsive to plaintiff’s
request; and

a Joint Statement Before the Senate Select Committee on Intelligence, one section
of which was responsive.

Def.’s SOF ¶ 2; Pl.’s SOF ¶ 1.

Defendant withheld the first two documents in full pursuant to FOIA Exemptions 1 and

3, and it redacted all of the responsive portions of the remaining three documents under the same

exemptions. Def.’s Mem. at 1; Pl.’s Mem. at 4. Defendant then filed a motion for summary

judgment, arguing that its withholdings were proper under the invoked FOIA exemptions

because of the documents’ classification levels at that time. See Def.’s Mot. for Summ. J. [Dkt.

# 11] (withdrawn pursuant to notice filed Sept. 5, 2013); see also Def.’s Mem. at 8; Pl.’s Mem. at

4.

While the motion for summary judgment was pending, in June 2013, Edward Snowden –

a former government contractor – leaked to media outlets thousands of classified documents

relating to the U.S. government’s intelligence surveillance programs, triggering a firestorm of

public commentary and enhanced scrutiny of our nation’s surveillance practices. In response,

President Obama ordered the Director of National Intelligence to review and declassify all the

information that could be disclosed without harming national security in an effort to enhance

transparency and regain the public’s trust. See Def.’s SOF ¶ 3; Pl.’s SOF ¶ 2; Def.’s Mem. at 2,

9. On August 21, 2013, the government posted that newly declassified information – some of

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which was contained in the five documents that are responsive to plaintiff’s FOIA request – on

the website www.dni.gov. Def.’s SOF ¶¶ 2, 4; Pl.’s SOF ¶¶ 1–2; Def.’s Mem. at 2, 9.

Faced with a sudden change in the status of some of the information that it previously

withheld in processing plaintiff’s FOIA request, defendant withdrew its pending motion for

summary judgment and reprocessed the five responsive documents. Def.’s Mem. at 2, 9. On the

same day the government posted the newly declassified information on the internet, defendant

produced to plaintiff redacted copies of the five responsive documents. It explained that any

remaining redactions covered information that continued to be classified in the wake of the

recent declassifications and was therefore still exempt under FOIA Exemptions 1 and 3. Def.’s

SOF ¶ 4; Pl.’s SOF ¶ 1, Def.’s Mem. at 9; Pl.’s Mem. at 6; see also Def.’s SOF ¶ 7 (“As part of a

recent declassification review of information concerning Section 702 intelligence collection, the

government conducted a line-by-line review of the information in the October 2011 Opinion.”).

Plaintiff accepted that position with respect to four of the five documents, and it notified

defendant that it would challenge only the redactions in the first document, the October 2011

FISC opinion.3 Def.’s SOF ¶ 5; Pl.’s SOF ¶ 1; see also Pl.’s Mem. at 1–2; Def.’s Mem. at 10.

Of the opinion’s eighty-one pages, approximately half of the pages contained less than a line of

redacted text, and included in that count is twenty-five pages that contained no redactions at all.

See 2011 FISC Opinion (Redacted), Ex. A to Pl.’s Mem. (“Oct. 11 FISC Op.”) [Dkt. # 19-1].

The parties subsequently filed the cross-motions for summary judgment that are now

before the Court, and the sole issue raised in those motions is whether FOIA Exemption 1 and 3

justify defendant’s withholding of the redacted information in the October 2011 FISC Opinion.

3 But plaintiff does not challenge the withholdings to the extent that the information
redacted is the name of individuals or companies, including communications service providers.
Def.’s SOF ¶ 5; Pl.’s SOF ¶ 1.
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Plaintiff acknowledged that the withholding of the redacted information might ultimately be

justified, but it took the position that the Court should not rely solely on defendant’s affidavits

and should instead conduct in camera review of the document. Pl.’s Mem. at 2 (“[S]ome

redactions still appear calculated not to protect legitimate national security interests, but to shield

government agencies and officials from embarrassment and to prevent further public scrutiny of

controversial government surveillance practices.”); see also id. at 10–15. Defendant argued that

in camera review was unnecessary, and it stated that the Court could properly rely solely on the

government’s affidavits to find in its favor. Def.’s Reply in Supp. of Def.’s Renewed Mot. for

Summ. J. & Opp. to Pl.’s Mem. (“Def.’s Reply”) at 2–10 [Dkt. # 22] (asserting that plaintiff has

not demonstrated that defendant acted in bad faith in redacting the information in the October

2011 FISC opinion).

Although it is true that the Court, “in conducting de novo review in the context of national

security concerns, . . . ‘must accord substantial weight to an agency’s affidavit concerning the

details of the classified status of the disputed record,’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir.

2007), quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984), it remains within the Court’s

discretion to conduct an in camera review of the withheld material – regardless of whether there

is bad faith – in order to make a responsible de novo determination on the claims of exemption.

Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Finding that in camera review would

assist the Court in making a determination in this case, the Court ordered defendant to produce

an unredacted version of the October 2011 FISC opinion for inspection. Mar. 25, 2014 Minute

Order.

After it conducted its in camera review, the Court called for additional information from

defendant that related to the question of whether the redactions were justified on national

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security grounds. See June 11, 2014 Minute Order. Specifically, on June 11, 2014, the Court

ordered defendant to explain why purely numerical docket information redacted on multiple

pages could not be disclosed, and it ordered the defendants to provide further information

concerning twelve specific redactions:

(1) why, in light of the unredacted paragraph that begins on page three,
any reference to the number of previous acquisitions in the opinion needs
to be withheld;

(2) why the material in the 10th line of the first paragraph in section I.A on
page 3 is classified, taking into consideration the rest of the sentence that
has already been disclosed and what is disclosed in footnote 17 on page
18;

(3) the reason why the end of footnote 9 is redacted;

(4) the reason for the redaction of the reference that is not a docket number
within lines 2-4 at the top of page 16;

(5) the reason for the redactions other than docket numbers on page 23;

(6) the reason for the redaction on page 24;

(7) the reason for the redaction on page 25;

(8) the reason for the redaction in footnote 49 on page 54;

(9) the reason for the redaction in the 5th line of the first paragraph under
section B;

(10) the reason for the redacted lines at the bottom of page 21 and onto
page 22;

(11) the reason for the redactions, other than the docket numbers, in the
first full paragraph on page 22 beginning with "Furthermore;" and

(12) the reason for the [redactions] on page 73.

June 11, 2014 Minute Order.

Defendant responded to the Court’s June 11, 2014 Order by filing an ex parte submission

that was reviewed by the Court on July 15, 2014. As part of its efforts to respond to the Court’s

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questions, defendant reviewed the FISC opinion and the redactions again, and defendant decided

to lift many of the previous redactions and disclose the information that was the subject of some

of the Court’s questions. Specifically, defendant withdrew its withholding of the information

referred to in questions 2, 3 (with the exception of the docket number information), 4, 5, 6, 7, 8,

9, 10, and 12, as well as part of the information in question 11. Therefore, there is no need to

address defendant’s previous withholding of that information.

STANDARD OF REVIEW

“FOIA cases are typically and appropriately decided on motions for summary

judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009) (citations omitted). Federal

Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment if 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). When assessing whether the moving

party is entitled to judgment as a matter of law, the Court “must view the evidence in the light

most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew

making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d

703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 48

(1986).

In a FOIA case, “the burden is on the agency to sustain its action,” and the district court

must determine the matter de novo. 5 U.S.C. § 552(a)(4)(B); see also Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To satisfy its burden to show the applicability of an

exemption, an agency may rely on detailed affidavits, declarations, a Vaughn index, in camera

review, or a combination of these tools.” Comptel v. FCC, 910 F. Supp. 2d 100, 111 (D.D.C.

2012). The agency must be specific enough in its explanation for the court to determine “why a

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particular exemption is relevant,” and the agency must correlate its exemption “claims with the

particular part of the withheld document to which they apply.” Judicial Watch, Inc. v. FDA, 449

F.3d 141, 146 (D.C. Cir. 2006). “Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf, 473 F.3d at 374 75.

ANALYSIS

Although Congress enacted FOIA in an effort “to ensure an informed citizenry,” which is

“vital to the functioning of a democratic society” and “needed to check against corruption and to

hold the governors accountable to the governed,” NLRB v. Robbins Tire & Rubber Co., 437 U.S.

214, 242 (1978), it also recognized that “legitimate governmental and private interests could be

harmed by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982).

Congress therefore created “nine specific exemptions under which disclosure could be refused,”

despite the agency and documents otherwise being subject to FOIA. Id. To properly balance the

competing interests of an informed citizenry with the need to protect governmental and private

interests, the nine FOIA exemptions “must be narrowly construed,” Dep’t of Air Force v. Rose,

425 U.S. 352, 361 (1976), while still “hav[ing] meaningful reach and application.” John Doe

Agency v. John Doe Corp., 493 U.S. 146, 152 (1989).

In this case, defendant invoked FOIA Exemptions 1 and 3 to justify its continued

withholding of the minimal number of redactions remaining in the October 2011 FISC opinion.

Def.’s Mem. at 1; Pl.’s Mem. at 4.

The first FOIA exemption provides that the statute’s disclosure requirements do not apply

to matters that are “(A) specifically authorized under criteria established by an Executive order to

be kept secret in the interest of national defense or foreign policy and (B) are in fact properly

classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Defendant points to

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Executive Order No. 13526, “Classified National Security Information,” to justify its redactions

in the October 2011 FISC Opinion. Def.’s Mem. at 12.

Section 1.1(a) of that Executive Order provides that information may be classified if:

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the control
of the United States Government;

(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; and

(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security, which includes defense against
transnational terrorism, and the original classification authority is able to
identify or describe the damage.

Exec. Order No. 13526, 75 Fed. Reg. 707, 707 (Dec. 29, 2009). The categories under section

1.4 of Executive Order No. 13526 include information that pertains to, among other things,

“intelligence activities (including covert action), intelligence sources or methods, or cryptology”

and “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or

protection services relating to the national security.” Id.

Plaintiff does not challenge that the first two prongs of Executive Order No. 13526 are

satisfied in this case. Pl.’s Mem. at 15–23. Instead, it challenges only defendant’s position that

all redacted information in the FISC opinion falls into one of the categories listed in section 1.4

of that order as well as defendant’s position that releasing that information would impact national

security. Id. Moreover, plaintiff contends that at least some of that information was never

properly classified under the Executive Order because section 1.7 of that order prohibits

classification of information in order to “conceal violations of the law, inefficiency, or

administrative error” or to “prevent embarrassment to a person, organization, or agency,” and

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defendant’s actions in withholding information are, at least in part, motivated by a desire to

avoid further embarrassment. Pl.’s Mem. at 20, quoting 75 Fed. Reg. at 710.

As noted above, the Court conducted an in camera review of the unredacted October

2011 FISC Opinion, and it reviewed defendant’s ex parte response to the targeted questions the

Court propounded in its June 11, 2014 Minute Order. Based on its review of those documents,

the Court finds that none of the remaining redactions appear to be for an improper purpose, such

as to shield embarrassing information from the public. The overwhelming majority of the

redactions are simply docket information identifying prior applications and opinions by either

number or date.4 None of these redactions, nor any of the other redactions, operate to withhold

material that would show any violation of law, inefficiency, or administrative error. Indeed,

material in the opinion that is critical of the government’s conduct has been declassified and

made public. See, e.g., Oct. 11 FISC Op. at 8, 15, 16 n.14, 28, and 45.

The Court also finds that defendant met its burden to justify continued withholding of the

very limited number of remaining redactions under FOIA Exemptions 1. The information has

been properly classified under Executive Order No. 13526, and giving defendant the deference it

is owed on matters of national security, see Wolf, 473 F.3d at 374, the Court finds that defendant

met its burden to show that “disclosure of the information reasonably could be expected to result

in damage to the national security.” 75 Fed. Reg. at 707.

Specifically, the Court finds that the following redactions are proper:

the docket number information contained throughout the opinion;

references to the number of previous acquisitions described in question 2 of the June 11,
2014 Minute Order;

4 This category includes all of the redactions on pages 1–2, 6–9, 11–13, 15, 19, 28, 42, 44,
7, 70, 72, 77, and 79 of the opinion and pages 1–2 of the order. See Oct. 11 FISC Op. It also
includes many of the redactions found on pages 3–5, 10, 16–18, 22–23, 30, 36, 68, 75, and 80.
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 the portion in question 11 of the June 11, 2014 Minute Order that remains redacted after
defendant’s July 11, 2014 submission of its supplemental ex parte explanation in
response to the Court’s June 11 Minute Order;

the information on pages 4, 20, 26–27, 30–31, 33, 36, 43, 47–48, 57, and 80 of the FISC
opinion;

the information in footnote 16 that spans pages 17–18 of the FISC opinion:

the information at the top of page 21 of the FISC opinion;

the information in footnote 33 on page 35 of the FISC opinion;

the information in footnote 42 on page 40 of the FISC opinion;

the information in footnote 53 on page 58 of the FISC opinion;

the information in footnote 57 on page 63 of the FISC opinion;

the information in the three lines at the bottom page 68 of the FISC opinion; and

the redaction on page 3 of the FISC order.

Because the limited remaining redactions are all properly withheld under FOIA Exemption 1,

defendant is entitled to judgment as a matter of law, and the Court need not address the

applicability of Exemption 3.

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