Electronic Priv. Info. v. Department of Defense, CIV.A. 04-1219(CKK).
| Decision Date | 08 December 2004 |
| Docket Number | No. CIV.A. 04-1219(CKK).,CIV.A. 04-1219(CKK). |
| Citation | 355 F.Supp.2d 98 |
| Parties | ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. DEPARTMENT OF DEFENSE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Marcia Clare Hofmann, David L. Sobel, Washington, DC, for Plaintiff.
Brian G. Kennedy, U.S. Department of Justice Civil Division, Federal Programs Branch, Washington, DC, for Defendant.
The case presents the question of whether Plaintiff Electronic Privacy Information Center ("EPIC") is entitled to expedited processing of its request for records filed pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1996 & West Supp.2004). After consideration of the parties' cross-Motions for Partial Summary Judgment, their briefs, and the relevant law, the Court determines that Defendant Department of Defense ("DOD") appropriately denied Plaintiff's request for expedited processing. Plaintiff's request for records shall be considered according to DOD's standard "first-in, first-out" procedure.
Plaintiff Electronic Privacy Information Center is a public interest research organization engaged in the review of federal law enforcement activities and policies in order to consider their possible impact on civil liberties and privacy interests. Compl. ¶ 3. Defendant Department of Defense is an agency within the executive branch of the United States Government, and the Defense Intelligence Agency ("DIA") is a component of DOD. Id.
On May 21, 2004, EPIC filed a request under FOIA with the DIA "seeking all agency records (including but not limited to electronic records) concerning [DIA] use of a program or system known as `Verity K2 Enterprise' for the purpose of analyzing intelligence and detecting terrorist activities." Pl.'s Mot. for Partial Summ. J. ("Pl.'s Mot.") Ex. 3 (FOIA Request) at 1. As part of this communication, Plaintiff requested that its application be considered on an expedited basis. See id. at 1-2. Plaintiff articulated its position that its request met the requirements for expedited processing under the applicable DOD regulations. Id. at 1 (citing 32 C.F.R. § 286). In particular, EPIC stated that "the government activity at issue here — use of data mining technology to detect potential terrorist activity" was "particularly timely" because of the release of a DOD Technology and Privacy Advisory Committee ("TAPAC") report, and the publication of two articles in the New York Times. Id. at 1-2.
After receiving no response to its request for expedited processing, EPIC filed the instant suit on July 20, 2004, seeking to compel DOD and DIA to process and release the requested records on an expedited basis. Pl.'s Mot. at 6. Subsequently, on August 13, 2004, DIA denied Plaintiff's request for expedited processing.1 Id. at 6, Ex. 7 (DIA denial letter).
The Freedom of Information Act confers jurisdiction on this Court to review an agency denial of expedited processing of a FOIA request. See 5 U.S.C. § 552(a)(6)(E)(iii) (). The Court considers such agency action under de novo review. See 5 U.S.C. 552(a)(4)(B) ( ); see also Al-Fayed v. CIA, 254 F.3d 300, 301 (D.C.Cir.2001) ().
Under the FOIA, a party may seek expedited processing and release of requested records, rather than awaiting processing under the standard "first-in, first-out" procedure. The Act states that "[e]ach agency shall promulgate regulations ... providing for expedited processing of requests for records — (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency." 5 U.S.C. § 552(a)(6)(E)(i)(I)-(II). "Compelling need" is defined in the FOIA to mean "that a failure to obtain requested records on an expedited basis ... could reasonably be expected to pose an imminent threat to the life or physical safety of an individual," or "with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity." 5 U.S.C. § 552(a)(6)(E)(v)(I)-(II).
The Department of Defense regulations specify that "a separate queue shall be established for requests meeting the test for expedited processing." 32 C.F.R. § 286.4(d)(3). Those requesting expedited consideration are to be notified "within 10 calendar days" of DOD's determination of whether to grant expedited processing. Id. The regulations indicate that "[e]xpedited processing shall be granted to a requester after the requester requests such and demonstrates a compelling need for the information." Id. A requester can demonstrate a "compelling need" by showing "that the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government Activity." 32 C.F.R. § 286.4(d)(3)(ii). In order to show that information is "urgently needed," the requester must show "that the information has a particular value that will be lost if not disseminated quickly," which "[o]rdinarily ... means a breaking news story of general public interest." 32 C.F.R. § 286.4(d)(3)(ii)(A).
For purposes of the instant motions, Defendant "does not dispute... that EPIC is `a person primarily engaged in disseminating information,"'2 and does not dispute that "DIA use of Verity K2 Enterprise software would be `an actual or alleged Federal Government activity."' Def.'s Mot. for Partial Summ. J. ("Def.'s Mot.") at 6. The question presented to the Court, then, is whether EPIC's request for expedited consideration demonstrated an "urgency to inform the public" of DIA's use of the Verity K2 Enterprise software program.
In order to determine whether Plaintiff has demonstrated an "urgency to inform," and hence "compelling need," the Court generally considers factors set forth by the District of Columbia Circuit Court in Al-Fayed v. CIA, 254 F.3d 300 (D.C.Cir.2001).3 These are first, "whether the request concerns a matter of current exigency to the American public," second, whether the consequences of delaying a response would compromise a significant recognized interest," and third, "whether the request concerns federal government activity." Id. at 310; see also ACLU v. U.S. Dep't of Justice, 321 F.Supp.2d 24, 29 (D.D.C.2004). Although Defendant does not dispute this third factor, Plaintiff has nevertheless failed to demonstrate the requisite "urgency to inform."
The Court's resolution of the issue presented is straightforward. Fatal to EPIC's request for expedited treatment is the failure in its original FOIA to demonstrate that there is any current public interest in the specific subject of that request. EPIC requested "all agency records ... concerning [DIA] use of a program or system known as `Verity K2 Enterprise' for the purpose of analyzing intelligence and detecting terrorist activities." Pl.'s Mot. Ex. 3 (FOIA Request) at 1. However, Plaintiff's argument for expedited processing included in the FOIA request demonstrates only public interest in the subject of data mining in general.4 EPIC presented the agency with two articles from the New York Times focusing on a report by DOD's Technology and Privacy Advisory Committee entitled "Safeguarding Privacy in the Fight Against Terrorism." See Pl.'s Mot. Ex. 3 (FOIA Request) at 1-2; see also id. Ex. 1 (TAPAC Report); id. Ex. 4 (Pear Article) ("Panel Urges New Protection On Federal `Data Mining"'); id. Ex. 5 (Safire Editorial) ("Security With Liberty").
Plaintiff's request quoted the TAPAC report stating that the Committee members "believe rapid action is necessary to address the host of government programs that involve data mining concerning U.S. persons...."5 Id. Ex. 3 (FOIA Request) at 2 (emphasis added by Plaintiff). However, Plaintiff does not argue that the TAPAC report discusses the Verity K2 Enterprise software specifically. The two New York Times articles cite to the TAPAC report, and like the report address data mining in general, but do not mention Verity K2 Enterprise as a specific software program utilized in the data mining process. Indeed, the articles make no mention of any specific program used in data mining, and the TAPAC report indicates that there are a "host" of such programs.
The case law makes it clear that only public interest in the specific subject of a FOIA request is sufficient to weigh in favor of expedited treatment. In Al-Fayed, the Circuit Court rejected a request to expedite requests for information related to the deaths of Princess Diana and Dodi Al Fayed. Al-Fayed, 254 F.3d 300. The Circuit Court rejected one of the plaintiffs' requests because, although the particular issue of a fraud scheme was current (despite the deaths having occurred some years before), the plaintiffs had failed to demonstrate that there was "any evidence in the record that there is substantial interest, either on the part of the American public or the media, in this particular aspect of plaintiffs' allegations." Id. at 311. Although the Court of Appeals found that the deaths remained "newsworthy," and that the specific...
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