Case: Electronic Frontier Foundation v. Department of Justice

1:11-cv-00939 | U.S. District Court for the District of Columbia

Filed Date: May 19, 2011

Closed Date: 2014

Clearinghouse coding complete

Case Summary

On May 19, 2011, the Electronic Frontier Foundation (EFF), a non-profit organization concerned with technology-related civil liberty issues, filed suit in the United States District Court for the District of Columbia against the United States Department of Justice (DOJ) under the Freedom of Information Act (FOIA) 5 U.S.C. § 552. The plaintiff sought the release of a document that the DOJ Office of Legal Counsel had prepared to examine the authority of the Federal Bureau of Investigation (FBI) u…

On May 19, 2011, the Electronic Frontier Foundation (EFF), a non-profit organization concerned with technology-related civil liberty issues, filed suit in the United States District Court for the District of Columbia against the United States Department of Justice (DOJ) under the Freedom of Information Act (FOIA) 5 U.S.C. § 552. The plaintiff sought the release of a document that the DOJ Office of Legal Counsel had prepared to examine the authority of the Federal Bureau of Investigation (FBI) under 18 U.S.C. 2511(2)(f) to obtain certain telephone records without administrative subpoenas or any other legal process. The plaintiff alleged that the defendant had wrongfully withheld this document under 5 U.S.C. § 552(b)(1) and (5) and that the plaintiff had exhausted the available FOIA administrational remedies to obtain this opinion.

On November 10, 2011, the DOJ filed for summary judgment. On December 19, 2011, the EFF filed a cross motion for summary judgment.

On September 21, 2012, Judge Richard J. Leon granted the defendant’s motion for summary judgment and denied that of the plaintiff. The court held that the requested document, in its entirety, was exempt from FOIA disclosure for two reasons:

1. The document was properly exempt from disclosure in the interest of national security because it contained classified information pertaining to intelligence activity. If disclosed, the information could threaten national security; and

2. The document fell under the “deliberative process privilege” because it was pre-decisional and deliberative in nature and it was generated as part of a continuous process of agency decision-making. (892 F.Supp.2d 95).

On November 15, 2012, the plaintiff appealed the district court’s decision to the United States Court of Appeals for the District Columbia. The plaintiff contested the ruling that the document was covered by the deliberative process privilege and argued that even if this privilege were to apply to the document, the FBI had waived the privilege by relying on the document in dealings with Congress and the Office of the Inspector General. The plaintiff also alleged that the district court had erred in failing to determine whether there was unclassified, factual information that was “reasonably separable” from the document’s other content and therefore disclosable. (739 F.3d 1).

The Court of Appeals held oral arguments before Judges Sri Srinivasan, Harry T. Edwards, and David B. Sentelle on November 26, 2013. On January 3, 2014, Judge Edwards, for the Court of Appeals, affirmed the district court’s decision. He held the following:

1. The requested document was covered by the deliberative process privilege;

2. The FBI had never waived the deliberative process privilege by adopting the document’s determination as its own; and

3. As the document was exempt from disclosure under deliberative process privilege, the court did not need to decide whether particular sections of the document were properly withheld as classified, or whether some material was reasonably segregable from the material properly withheld (739 F.3d 1).

On October 14, 2014, the US Supreme Court denied EFF’s petition for writ of certiorari. The case is now closed.

Summary Authors

Chris Opila (9/28/2017)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/4211240/parties/electronic-frontier-foundation-v-department-of-justice/


Judge(s)

Edwards, Harry Thomas (District of Columbia)

Leon, Richard J. (District of Columbia)

Attorneys(s) for Plaintiff

Rumold, Mark Thomas (California)

Sobel, David L. (District of Columbia)

Attorneys(s) for Defendant

Delery, Stuart F. (District of Columbia)

Layton, Elizabeth (District of Columbia)

Machen, Ronald C (District of Columbia)

Raab, Michael S. (District of Columbia)

Tenny, Daniel (District of Columbia)

Judge(s)

Edwards, Harry Thomas (District of Columbia)

Leon, Richard J. (District of Columbia)

Attorneys(s) for Plaintiff

Rumold, Mark Thomas (California)

Sobel, David L. (District of Columbia)

Attorneys(s) for Defendant

Delery, Stuart F. (District of Columbia)

Layton, Elizabeth (District of Columbia)

Machen, Ronald C (District of Columbia)

Raab, Michael S. (District of Columbia)

Tenny, Daniel (District of Columbia)

Documents in the Clearinghouse

Document

1:11-cv-00939

12-05363

Docket [PACER]

March 25, 2014

March 25, 2014

Docket
1

1:11-cv-00939

Complaint for Injunctive Relief

May 19, 2011

May 19, 2011

Complaint
22

1:11-cv-00939

Memorandum Opinion

892 F.Supp.2d 95, 2012 WL 4319901

Sept. 21, 2012

Sept. 21, 2012

Order/Opinion
26

1:11-cv-00939

12-05363

Judgment

U. S. Court of Appeals for the District of Columbia Circuit

739 F.3d 1, 2014 WL 25916

March 25, 2014

March 25, 2014

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4211240/electronic-frontier-foundation-v-department-of-justice/

Last updated July 22, 2022, 3:07 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616038972) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 05/20/2011)

1 Civil Cover Sheet

View on PACER

May 19, 2011

May 19, 2011

RECAP
2

LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ELECTRONIC FRONTIER FOUNDATION (jf, ) (Entered: 05/20/2011)

May 19, 2011

May 19, 2011

PACER
3

STANDING ORDER. Signed by Judge Richard J. Leon on 6/10/2011. (lcrjl3) (Entered: 06/10/2011)

June 10, 2011

June 10, 2011

PACER
4

ANSWER to 1 Complaint by DEPARTMENT OF JUSTICE.(Layton, Elisabeth) (Entered: 06/20/2011)

June 20, 2011

June 20, 2011

RECAP
5

MEET AND CONFER STATEMENT. (Layton, Elisabeth) (Entered: 07/20/2011)

July 20, 2011

July 20, 2011

PACER
6

ERRATA Proposed Order by DEPARTMENT OF JUSTICE 5 Meet and Confer Statement. (Layton, Elisabeth) (Entered: 08/04/2011)

Aug. 4, 2011

Aug. 4, 2011

PACER
7

ORDER : Defendant's Motion for Summary Judgment due by 10/7/2011. Plaintiff's Opposition thereto and Cross-Motion for Summary Judgment due by 11/7/2011. Defendant's Reply and Opposition due by 11/21/2011. Plaintiff's Reply by 12/5/2011. Signed by Judge Richard J. Leon on 8/5/2011. (see order) (kc) (Entered: 08/08/2011)

Aug. 8, 2011

Aug. 8, 2011

PACER
8

Unopposed MOTION for Extension of Time to File Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 09/30/2011)

Sept. 30, 2011

Sept. 30, 2011

PACER
9

ORDER granting 8 Defendant's Motion for Extension of Time. Defendant's Motion for Summary Judgment is due by 11/4/2011; Plaintiff's Opposition and Cross-Motion is due by 12/7/2011; Defendant's Reply to Summary Judgment and Opposition to the Cross-Motion is due by 12/21/2011; Plaintiff's Reply to the Cross-Motion is due by 1/6/2012. Signed by Judge Richard J. Leon on 10/3/2011. (jth) (Entered: 10/07/2011)

Oct. 7, 2011

Oct. 7, 2011

PACER
10

Unopposed MOTION for Extension of Time to File Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 11/04/2011)

1 Text of Proposed Order

View on RECAP

Nov. 4, 2011

Nov. 4, 2011

RECAP
11

MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration of David M. Hardy, # 4 Declaration of Paul P. Colborn, # 5 Text of Proposed Order)(Layton, Elisabeth) (Entered: 11/10/2011)

1 Statement of Facts

View on RECAP

2 Memorandum in Support

View on PACER

3 Declaration of David M. Hardy

View on RECAP

4 Declaration of Paul P. Colborn

View on RECAP

5 Text of Proposed Order

View on PACER

Nov. 10, 2011

Nov. 10, 2011

PACER
12

NOTICE OF FILING CORRECTED DECLARATION OF DAVID M. HARDY by DEPARTMENT OF JUSTICE re 11 MOTION for Summary Judgment (Attachments: # 1 Errata Corrected Declaration of David M. Hardy)(Layton, Elisabeth) (Entered: 12/13/2011)

1 Errata Corrected Declaration of David M. Hardy

View on PACER

Dec. 13, 2011

Dec. 13, 2011

PACER
13

Memorandum in opposition to re 11 MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts (Response), # 4 Text of Proposed Order)(Sobel, David) (Entered: 12/13/2011)

1 Exhibit A

View on PACER

2 Exhibit B

View on PACER

3 Statement of Facts (Response)

View on PACER

4 Text of Proposed Order

View on PACER

Dec. 13, 2011

Dec. 13, 2011

RECAP
14

Cross MOTION for Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 12/13/2011)

1 Exhibit A

View on RECAP

2 Exhibit B

View on RECAP

3 Statement of Facts

View on PACER

4 Text of Proposed Order

View on PACER

Dec. 13, 2011

Dec. 13, 2011

PACER
15

Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment, 14 Cross MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 12/19/2011)

Dec. 19, 2011

Dec. 19, 2011

PACER
16

Unopposed MOTION for Extension of Time to File Defendant's Opposition To Plaintiff's Cross-Motion For Summary Judgment And Reply In Support Of Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 01/09/2012)

1

View on PACER

Jan. 9, 2012

Jan. 9, 2012

RECAP
17

REPLY to opposition to motion re 11 MOTION for Summary Judgment, filed by DEPARTMENT OF JUSTICE. (Layton, Elisabeth) Modified link on 1/11/2012 (znmw, ). (Entered: 01/10/2012)

Jan. 10, 2012

Jan. 10, 2012

PACER
18

Memorandum in opposition to re 14 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (See Docket Entry 17 to view document. Counsel is reminded to file a combined reply and opposition as two separate docket entries in future). (znmw, ) (Entered: 01/11/2012)

Jan. 10, 2012

Jan. 10, 2012

PACER
19

Consent MOTION for Extension of Time to File Response/Reply (Two Days) by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 01/24/2012)

Jan. 24, 2012

Jan. 24, 2012

PACER
20

REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sobel, David) (Entered: 01/30/2012)

Jan. 30, 2012

Jan. 30, 2012

PACER
21

NOTICE OF SUPPLEMENTAL AUTHORITY by ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 02/07/2012)

Feb. 7, 2012

Feb. 7, 2012

PACER
22

MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 9/21/2012. (kc ) (Entered: 09/21/2012)

Sept. 21, 2012

Sept. 21, 2012

RECAP
23

ORDER, For the reasons set forth in the Memorandum Opinion entered this date, it is this 21st day of September, 2012, hereby ORDERED that defendant's Motion 11 for Summary Judgment is GRANTED; it is further ORDERED that plaintiff's Cross-Motion 14 for Summary Judgment is DENIED. Signed by Judge Richard J. Leon on 9/21/2012. (see order) (kc ) (Entered: 09/21/2012)

Sept. 21, 2012

Sept. 21, 2012

RECAP
24

NOTICE OF APPEAL TO DC CIRCUIT COURT as to 23 Order on Motion for Summary Judgment,,, 22 Memorandum & Opinion by ELECTRONIC FRONTIER FOUNDATION. Filing fee $ 455, receipt number 0090-3133183. Fee Status: Fee Paid. Parties have been notified. (Sobel, David) (Entered: 11/15/2012)

Nov. 15, 2012

Nov. 15, 2012

PACER
25

Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 24 Notice of Appeal to DC Circuit Court,. (znmw, ) (Entered: 11/16/2012)

Nov. 16, 2012

Nov. 16, 2012

PACER
26

MANDATE of USCA (certified copy) as to 24 Notice of Appeal to DC Circuit Court, filed by ELECTRONIC FRONTIER FOUNDATION ; ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date. USCA Case Number 12-5363. (Attachments: # 1 USCA Opinion)(md, ) (Entered: 03/27/2014)

March 25, 2014

March 25, 2014

PACER

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: May 19, 2011

Closing Date: 2014

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Electronic Frontier Foundation (EFF), a non-profit organization concerned with technology-related civil liberty issues

Plaintiff Type(s):

Non-profit NON-religious organization

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States Department of Justice (Washington D.C., District of Columbia), Federal

Case Details

Causes of Action:

Freedom of Information Act (FOIA), 5 U.S.C. § 552

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Records Disclosure