Elec. Frontier Found. v. U.S. Dep't of Justice

• Decision Date: 26 March 2019
• Docket Number: Case No. 16-cv-02041-HSG
• Citation: 376 F.Supp.3d 1023
• Court: U.S. District Court — Northern District of California
• Parties: ELECTRONIC FRONTIER FOUNDATION, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

376 F.Supp.3d 1023

ELECTRONIC FRONTIER FOUNDATION, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Case No. 16-cv-02041-HSG

United States District Court, N.D. California.

Signed March 26, 2019

Mark Thomas Rumold, Aaron David Mackey, Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA, Nathan Daniel Cardozo, Facebook, Menlo Park, CA, for Plaintiff.

Julia Alexandra Heiman, Rodney Patton, United States Department of Justice, Washington, DC, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT

Re: Dkt. Nos. 66, 68

HAYWOOD S. GILLIAM, JR., United States District Judge

Pending before the court is the motion for partial summary judgment filed by Defendant U.S. Department of Justice, Dkt. No. 66, and the cross-motion for partial summary judgment filed by Plaintiff Electronic Frontier Foundation ("EFF"), Dkt. No. 68. For the following reasons, the Court GRANTS Defendant's motion and DENIES Plaintiff's motion.

I. BACKGROUND

On April 19, 2016, EFF filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking release of records concerning applications to the Federal Intelligence Surveillance Court ("FISC") and related opinions and orders. Dkt. No. 1 ("Compl.") ¶ 1.

According to the Complaint, FISC reviews applications from the government concerning national security surveillance. Id. ¶ 7. Historically, FISC opinions and appellate decisions by the Foreign Intelligence Surveillance Court of Review ("FISCR") were ex parte and classified. Id. ¶ 8. However, the USA FREEDOM Act, which was passed in the wake of the September 11th, 2001 terrorist attacks, required a declassification review of "significant" FISC and FISCR decisions. Id. ¶¶ 9–12. Plaintiff alleges that recently the government has been using court orders to pressure private companies to provide access to encrypted communications, as was allegedly done following the San Bernardino shootings. Id. ¶¶ 14–18. Through this FOIA action, Plaintiff "seeks to inform the public about the extent to which the government has used FISA and the FISC to compel private companies into providing assistance that would undermine the safety and security of millions of people who rely on software and the devices that run them, such as the iPhone, every day." Id. ¶ 19.

Currently at issue is one FOIA request: a request for all decisions, orders, or opinions issued by FISC or FISCR between 1978 and June 1, 2015, that include a significant construction or interpretation of any law, including a significant construction of a "specific selection term" under the USA FREEDOM Act. See id. ¶ 31; Dkt. No. 68 at 3. The government identified seventy-nine (79) responsive FISC opinions, and eventually agreed to release seventy-three (73) of those opinions, in full or in part. Dkt. No. 68 at 3–4. The remaining six opinions are the subject of these cross motions for summary judgment. The government contends that these six documents are exempted from disclosure under FOIA Exemptions 1, 3, 6, 7(A), 7(C), and 7(E). Dkt. No. 66 at 1. Plaintiff argues that the USA FREEDOM Act requires the government to conduct a declassification review and either declassify and release the six opinions, or create an unclassified summary of each of the opinions. Dkt. No. 68 at 2. Plaintiff contends that because the government has not complied with the declassification requirements, it has failed to meet its burden under FOIA to withhold the six documents. Id. at 7. Plaintiff articulates a single claim for relief: violation of FOIA for wrongful withholding of the six undisclosed agency records. Compl. ¶¶ 38-41.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when a "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). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is evidence in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The Court views the inferences reasonably drawn from the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and "may not weigh the evidence or make credibility determinations," Freeman v. Arpaio , 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v. Schriro , 514 F.3d 878, 884–85 (9th Cir. 2008). If a court finds that there is no genuine dispute of material fact as to only a single claim or defense or as to part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a).

With respect to summary judgment procedure, the moving party bears both the ultimate burden of persuasion and the initial burden of producing those portions of the pleadings, discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will not bear the burden of proof on an issue at trial, it "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102 (9th Cir. 2000). Where the moving party will bear the burden of proof on an issue at trial, it must also show that no reasonable trier of fact could not find in its favor. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548. In either case, the movant "may not require the nonmoving party to produce evidence supporting its claim or defense simply by saying that the nonmoving party has no such evidence." Nissan Fire & Marine Ins. Co. , 210 F.3d at 1105. "If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Id. at 1102–03.

"If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Id. at 1103. In doing so, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co. , 475 U.S. at 586, 106 S.Ct. 1348. A nonmoving party must also "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548.

A. FOIA

FOIA, codified as 5 U.S.C. § 552, "was enacted to facilitate public access to Government documents." Lahr v. Nat'l Transp. Safety Bd. , 569 F.3d 964, 973 (9th Cir. 2009) (quotations omitted). The goal of FOIA is to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." Id. (quotations omitted). At the same time, FOIA contemplates that the government may have legitimate reasons for withholding some information from the public. Id. Accordingly, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of Navy , 562 U.S. 562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). These nine FOIA exemptions are "explicitly made exclusive and must be narrowly construed." Id. at 565, 131 S.Ct. 1259 (quotation omitted).

A defendant agency "must show that its search for responsive records was adequate, that any claimed exemptions actually apply, and that any reasonably segregable, non-exempt parts of records have been disclosed after redaction of exempt information." Light v. Dep't of Justice , 968 F.Supp.2d 11, 23 (D.D.C. 2013) ; accord Lahr , 569 F.3d at 973 ; Pac. Fisheries, Inc. v. United States , 539 F.3d 1143, 1148 (9th Cir. 2008). The agency bears the burden to show that it has complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B). "[G]overnment agencies seeking to withhold documents requested under the FOIA have been required to supply the opposing party and the court with a ‘Vaughn index,’ identifying each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption. The purpose of the index is to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." Wiener v. F.B.I. , 943 F.2d 972, 977–78 (9th Cir. 1991) (citations and quotations omitted).

FOIA cases are typically decided on motions for summary judgment because the facts are rarely in dispute. See Minier v. Cent. Intelligence Agency , 88 F.3d 796, 800 (9th Cir. 1996). On a motion for summary judgment, a district court analyzes the withholding of documents de novo. 5 U.S.C. § 552(a)(4)(B). FOIA permits a district court to enjoin a defendant agency from withholding agency records or to order a defendant agency to produce any improperly withheld records. Id.

B. USA FREEDOM Act

The USA FREEDOM Act was signed into law on June 2, 2015. The purpose of the USA FREEDOM Act was to reform the data collection process under existing statutory schemes and provide greater oversight provisions to protect the privacy and civil liberties of individuals. H.R. Rep. No. 114-109, at 6 (2015). Relevant here, Section 402 of the USA FREEDOM Act ("...