Foundation v. Dep't of Justice

• Decision Date: 30 September 2015
• Docket Number: Civil No. 12-cv-1441 (ABJ/GMH)
• Parties: ELECTRONIC FRONTIER FOUNDATION Plaintiff, v. DEPARTMENT OF JUSTICE Defendant.
• Court: U.S. District Court — District of Columbia

ELECTRONIC FRONTIER FOUNDATION Plaintiff,
v.
DEPARTMENT OF JUSTICE Defendant.

Civil No. 12-cv-1441 (ABJ/GMH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 30, 2015

MEMORANDUM OPINION

On February 23, 2015, this case was referred to the undersigned for resolution of plaintiff's motion for attorney's fees and costs. Upon a thorough review of the parties' briefs and the entire record herein,¹ plaintiff's motion will be granted in part and denied in part.

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I. BACKGROUND

Plaintiff Electronic Frontier Foundation ("EFF") is a "not-for-profit corporation . . . that works to inform policymakers and the general public about civil liberties issues related to technology and to act as a defender of those liberties." Compl. ¶ 3. This case stems from plaintiff's Freedom of Information Act ("FOIA") request seeking information concerning the government's surveillance activities under Section 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1881a, as amended by the FISA Amendment Act of 2008 ("FAA"). Section 702 authorizes and regulates certain governmental electronic surveillance of communications of individuals who are not "United States persons" and are reasonably believed to be located outside the United States, for foreign intelligence purposes. 50 U.S.C. § 1881a. Collecting foreign intelligence under Section 702 must comport with the Fourth Amendment, and is subject to congressional oversight as well as several types of Executive Branch review. Id. at §§ 1881a(b)(5), (f)(2), (l).

During the summer of 2012, with the FAA scheduled to sunset at the end of the year unless re-authorized by Congress, Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, sought the public release of information concerning the government's Section 702 collection under the FAA. Pl.'s MSJ at 3. In response to Senator Wyden's request, on June 20, 2012, the government declassified four statements concerning its Section 702 surveillance activities. Id. Through these disclosures, the public learned for the first time that "the government's implementation of Section 702 of [FISA] ha[d] sometimes

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circumvented the spirit of the law," and that "on at least one occasion, the Foreign Intelligence Surveillance Court ("FISC")² held that some collection carried out pursuant to the Section 702 minimization procedures³ used by the government was unreasonable under the Fourth Amendment." Compl. ¶ 10 (quoting Letter from Kathleen Turner, Director of Legislative Affairs, Office of the Director of National Intelligence, to Senator Ron Wyden (July 20, 2012)).⁴

Understanding the importance of the disclosures to the ongoing public debate concerning the reauthorization of the FAA, on July 26, 2012, EFF submitted a FOIA request to the National Security Division of the Department of Justice ("DOJ") requesting additional information concerning the subject matter of Senator Wyden's disclosures. See Compl. ¶ 12; Fee Mot. at 2. Specifically, plaintiff sought the release of:

(1) Any written opinion or order . . . in which "the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment";

(2) Any written opinion or order . . . 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

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

Compl. ¶ 12. EFF formally requested expedited processing of its request. Id. ¶ 13 (citing 5 U.S.C. § 552(a)(6)(E)(i)(I)-(II)). After exhausting all applicable administrative remedies without receiving any responsive documents, EFF filed a FOIA complaint in this Court seeking injunctive relief. See Compl. ¶ 18.

On December 6, 2012, this Court ordered DOJ to file a report no later than January 4, 2013, addressing "the status of the production" of documents responsive to EFF's FOIA request. See Dec. 6, 2012, Minute Order. On January 3, 2013 - four days after the FAA was reauthorized - DOJ notified EFF that it had identified five responsive documents:

• an October 2011 FISC opinion;

• a redacted copy of this same opinion that was provided to Congress pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1871;

• one paragraph of a classified White Paper prepared for Congress;

• one section of a Joint Statement Before the Permanent Select Committee on Intelligence, U.S. House of Representatives; and

• one section of a Joint Statement Before the Senate Select Committee on Intelligence.

Def.'s MSJ at 8-9; Fee Mot. at 2-3. It is only the October 2011 FISC opinion and the redacted version of the same (hereinafter, collectively referred to as the "2011 FISC Opinion" or the "Opinion") that is relevant to EFF's motion for an award of attorney's fees because EFF withdrew its challenge to the government's withholdings in the other three documents. See Pl.'s MSJ at 2 ("[T]he only document remaining at issue in this case [is] an opinion of the . . . FISC issued in October 2011. . . ."); Ren. Def.'s MSJ at 10 ("By email dated August 27, 2013, EFF

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advised the Department that the only withholdings still in contention are those in the October 2011 FISC opinion . . . .").

In this litigation, DOJ withheld the 2011 FISC Opinion in full pursuant to FISC Rule of Procedure 62.⁵ Def.'s MSJ at 11-14. It further asserted that FISC Rule 62 released the government of its obligation to produce any reasonably segregated, non-exempt information from the Opinion. Id. at 26. According to DOJ, "[u]nlike in the typical FOIA case, the Department does not have the discretion to produce [the 2011 FISC Opinion] to Plaintiff" because "[p]ursuant to the FISC Rules of Procedure, such court records cannot be published" other than by order of the FISC. Id.; see also SOMF ¶ 16 ("[The 2011 FISC Opinion] could not be segregated and released by the Department because of the FISC-imposed restriction on [its] public release."); Bradley Decl. ¶ 11 ("For [the FISC 2011 Opinion], I determined that no portion . . . could be properly segregated and released due to the FISC's rule pertaining to the release of its orders.").

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The government also withheld the 2011 FISC Opinion pursuant to FOIA Exemptions 1⁶ and 3.⁷ Def.'s MSJ at 9. Under Exemption 1, DOJ withheld information in the Opinion "describing highly sensitive intelligence activities, sources and methods" concerning "the manner and means by which the United States Government targets non-United States persons located overseas to acquire foreign intelligence information under Section 702." Bradley Decl. ¶¶ 8-9. The National Security Agency ("NSA") withheld information "pertain[ing] to the operational details of NSA's collection activities under Section 702." Sherman Decl. ¶¶ 20-23. As for FOIA Exemption 3, the government withheld from the Opinion information concerning intelligence sources and methods, communication intelligence activities, and information concerning NSA activities pursuant to: Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024; Section 6 of the National Security Act of 1959, 50 U.S.C. § 3605; and/or 18 U.S.C. § 798. Bradley Decl. ¶ 10; Sherman Decl. ¶¶ 13, 24-31.

In response to DOJ's assertion that FISC Rule 62 made any disclosure from the 2011 FISC Opinion impossible absent an order of the FISC, on April 24, 2013, EFF sought a stay of this case to permit it to adjudicate that issue before the FISC. See Mot. to Stay at 1-2. With DOJ's consent, this Court promptly granted the stay so as to permit EFF to litigate the issue in front of the FISC. Apr. 24, 2013, Minute Order.

On May 23, 2013, plaintiff filed a motion with the FISC requesting the court's consent to the disclosure of the 2011 FISC Opinion, or, alternatively, its determination that FISC Rule 62

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did not prohibit disclosure of the Opinion by this Court pursuant to FOIA. In re Motion for Consent to Disclosure of Court Records, No. Misc. 13-01, 2013 WL 5460051, at *4 (F.I.S.C. 2013). DOJ opposed the motion, arguing that the FISC lacked jurisdiction to adjudicate EFF's request, or, in the alternative, that there was "good reason not to vacate the seal on the opinion" that, in the government's view, FISC Rule 62 created. Gov.'s Opp. Br. at 2, 5, In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051 (F.I.S.C. 2013). The FISC swiftly resolved the matter, holding that FISC Rule 62 neither placed the 2011 FISC Opinion under seal nor "prohibited the Government from disclosing copies of the [Opinion] sought by EFF." In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051, at *4 (F.I.S.C. 2013). The FISC further held that a decision concerning the Opinion's disclosure was "appropriately addressed by the District Court in the FOIA litigation." Id. In light of the FISC's ruling, DOJ notified the Court on August 9, 2013, that it was "withdrawing its jurisdictional argument" based on FISC Rule 62. Aug. 9, 2013, Status Report [Dkt. 15] at 2 n.1.

On June 6, 2013, six days prior to the FISC's order, the Guardian and Washington Post published classified details of the government's domestic surveillance programs that were leaked by a former NSA contractor, Edward Snowden.⁸ In response to "a firestorm of public commentary and enhanced scrutiny of our nation's surveillance practices," on June 20, 2013, President Obama ordered the Office of the Director of National Intelligence ("ODNI") to review and declassify all information that could immediately be disclosed to the public, and to engage in a "large-scale, multi-agency review process led by ODNI to determine what further information .

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. . could be declassified and released." Elec....