Elec. Frontier Found. v. Office of The Dir. of Nat'l Intelligence

• Decision Date: 09 April 2010
• Docket Number: No. 09–17235.,09–17235.
• Citation: 639 F.3d 876
• Parties: ELECTRONIC FRONTIER FOUNDATION, Plaintiff–Appellee,v.OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; Department of Justice, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

639 F.3d 876

2010 Daily Journal D.A.R. 5347

ELECTRONIC FRONTIER FOUNDATION, Plaintiff–Appellee,

v.OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; Department of Justice, Defendants–Appellants.

No. 09–17235.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 2010.Filed Feb. 9, 2010.Amended April 9, 2010.

Douglas N. Letter and Scott McIntosh, United States Department of Justice, Civil Division, Washington, D.C., for the defendants-appellants.Marcia Hofmann, San Francisco, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Northern District of California, Jeffrey S. White, District Judge, Presiding. D.C. Nos. 3:08–cv–01023–JSW, 3:08–cv–02997–JSW.Before: MYRON H. BRIGHT,^* MICHAEL DALY HAWKINS, and MILAN D. SMITH, JR., Circuit Judges.

ORDER

The Motion by Appellants to Correct Factual Misstatement in Panel Opinion is GRANTED. The Opinion filed on February 9, 2010, slip op. page 2313, and appearing at 595 F.3d 949 (9th Cir.2010), is hereby amended as follows:

We delete the sentence on page 962 that currently reads:

On appeal, defendants concede that subsequent to the district court order, the government determined the district court was correct to order disclosure of the documents exchanged between the Executive Branch and Congress, as well as those in which the telecommunications firms were involved in the exchange.

In its place, we substitute the following sentence:

After the district court's disclosure order, the Solicitor General chose not to appeal the Exemption 5 ruling as it pertained to the documents exchanged between the Executive Branch and Congress, as well as those documents in which the telecommunications firms were involved in the exchange.

No petitions for rehearing or petitions for rehearing en banc will be entertained following the filing of this Order.

HAWKINS, Circuit Judge:

OPINION

In the wake of the September 11, 2001 terrorist attacks, the President authorized the National Security Agency (“NSA”) to conduct a warrantless, electronic surveillance program on millions of American telephones. Numerous lawsuits have claimed the program was illegal and unconstitutional, e.g., Al–Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1192–93 (9th Cir.2007), including a consolidated action for damages against allegedly cooperating telecommunications providers, see In re NSA Telecomms. Records Litig., 633 F.Supp.2d 949, 959 (N.D.Cal.2009); see also U.S. Dep't of Justice, Office of Inspector Gen., A Review of the Federal Bureau of Investigation's Use of Exigent Letters and Other Informal Requests for Telephone Records 20–25 (Jan. 2010) (describing three unnamed telecommunications carriers' cooperation with the FBI). The merits of those claims, however, are not at issue here.

This case concerns the discussions between telecommunications carriers (including their lobbyists and attorneys) and the government, as the carriers sought retroactive liability protection for any participation in the program. This appeal concerns the extent to which the public has the right to information about those discussions and related lobbying efforts under the Freedom of Information Act (“FOIA”).

I. BACKGROUND

A. Enactment of the Foreign Intelligence Surveillance Act Amendments

Efforts to provide liability protection for the providers began in 2007. In April of that year, as part of a broader discussion of reforming electronic surveillance laws, the Department of Justice (“DOJ”) sent a legislative proposal to Congress, which included a provision creating retroactive immunity for telecommunications providers alleged to have participated in the surveillance activities. In August 2007, Congress enacted the Protect America Act of 2007 (“PAA”), Pub.L. No. 110–55, 121 Stat. 552, a temporary measure, which did not include a liability shield.

Contemporaneously with the PAA debate, news organizations such as The New York Times and Newsweek reported on a “campaign” involving “some of Washington's most prominent lobbying and law firms” ¹ to pressure the Bush administration to “quickly approve a measure wiping out all private lawsuits against them for assisting” with the warrantless surveillance program. The news accounts highlighted the providers' “hidden role in the political battle,” and Newsweek claimed Director of National Intelligence Mike McConnell (“McConnell”) had “raise[d] the stakes,” stating in a recent interview that the lawsuits could “bankrupt these companies.”

Congress designed the PAA as a stopgap, and allowed it to expire on February 16, 2008. One day before the PAA's expiration, McConnell discussed the need for statutory protection for the carriers, stating in a TV interview, “The companies are telling us if you can't protect us, the cooperation you need is not going to be there.” On February 23, DOJ and the Office of the Director of National Intelligence (“ODNI”) issued a joint press release noting the “private partners are cooperating for the time being,” but the government also expressed concern because the carriers “have indicated that they may well discontinue cooperation if the uncertainty [over their liability exposure] persists.” News reports claimed AT & T in fact stopped cooperating with the government for six days after the expiration of the PAA. Similar reports indicated Verizon expressed its concerns to the government but did not cease its assistance.

In July 2008, Congress passed, and the President signed, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (“FISA Amendments Act”), Pub.L. No. 110–261, 122 Stat. 2436, updating FISA on a more permanent basis than did the PAA. As their lobbyists had sought, the legislation included a liability shield for the carriers. Under Title VIII of the Act, section 802, “Procedures for Implementing Statutory Defenses,” established the immunity procedure.

Specifically, section 802 provided that “a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed,” so long as the Attorney General certified either that a defendant provided assistance pursuant to a number of reasons, such as court order or presidential authorization, see § 802(a)(1)-(4), 122 Stat. at 2468–69, or certified that “the person did not provide the alleged assistance,” id. § 802(a)(5) (emphasis added).

B. EFF's FOIA Requests

After passage of the PAA but before enactment of the FISA Amendments Act, the Electronic Frontier Foundation (“EFF”) made a FOIA request to ODNI and five DOJ components (together “Defendants” or “the government”),² seeking all records from September 1, 2007, through December 21, 2007, concerning “briefing, discussions, or other exchanges” agency officials had with 1) members of Congress, and “2) representatives or agents of telecommunications companies concerning amendments to FISA, including any discussion of immunizing telecommunications companies or holding them otherwise unaccountable for their role in government surveillance activities.” Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 542 F.Supp.2d 1181, 1184 (N.D.Cal.2008) (“ EFF ”).

Some four months later, EFF submitted a second round of FOIA requests to the same agencies seeking “all agency records” concerning briefings, discussions, or other exchanges between the agencies and “representatives or agents of telecommunications companies concerning amendments to FISA,” or shielding the companies from liability as a result of their cooperation with government surveillance activities. This round of FOIA requests also sought information regarding communications from the agencies to members of Congress or their staffs, as well as agency communications, regardless of subject matter, with a number of named, high-profile telecommunications industry employees and lobbyists.³

In both FOIA letters, EFF sought expedited processing of their requests. See 5 U.S.C. § 552(a)(6)(E)(v)(II) (2000), 32 C.F.R. § 1700.12(c)(2) (2007), and 28 C.F.R. § 16.5(d)(1)(ii). When the agencies failed to timely respond, EFF filed two separate actions, which were later consolidated by the district court.

C. Procedural History

On April 4, 2008, the district court granted a preliminary injunction requiring ODNI and DOJ to expedite processing of EFF's December 2007 FOIA requests. EFF, 542 F.Supp.2d at 1187. The parties negotiated a schedule for processing the June 2008 requests.

In response to the preliminary injunction, ODNI and DOJ released many documents, but withheld others pursuant to a number of FOIA exemptions and privileges. Under Exemption 5(protecting “inter-agency or intra-agency” documents privileged in civil litigation, 5 U.S.C. § 552(b)(5) (2006)), Defendants withheld email messages and other information exchanged between the agencies and Congress, the agencies and the telecommunications carriers, and the agencies and other parts of the Executive Branch, including the White House.

Defendants also withheld the identities of telecommunications company representatives under Exemption 3(permitting the withholding of information “specifically exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3)), and Exemption 6 (permitting withholding of certain personnel, medical, and similar files for which disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6)).

EFF challenged withholdings related to unclassified communications between and among Executive agencies, Congress, the White House, and telecommunications carriers, concerning amendments to FISA. It also challenged Defendants' withholding of the identities of individual agents or representatives of the carriers within both the released and withheld communications. The parties each moved for summary judgment, which they agreed to consolidate, and the district court denied the government's motion, granted...