Case: Electronic Frontier Foundation v. Department of Justice

On May 11th, 2010, the Electronic Frontier Foundation (EFF), a non-profit corporation based out of California focused on civil liberties issues relating to technology, filed this lawsuit in the U.S. District Court for the District of Columbia. The plaintiff sued the Department of Justice (DOJ), specifically the Federal Bureau of Investigations (FBI), under the Freedom of Information Act (FOIA). The plaintiff, representing itself, sought injunctive relief, claiming that the FBI had wrongfully withheld agency records requested by the plaintiff under FOIA pertaining to the re-authorization of three provisions of the Foreign Intelligence Surveillance Act (FISA). Specifically, the plaintiff alleged that the FBI had failed to comply with the statutory time limit for processing FOIA requests and that the plaintiff had exhausted all administrative remedies in trying to obtain the requested records. The plaintiff requested that the FBI immediately process the requested records in their entirety, disclose the requested records and make copies available to plaintiff upon completion of processing, and to do so in a timely and expedited manner.

Subsequently, on June 14th, 2010, District Judge Colleen Kollar-Kotelly ordered the parties to confer and propose a schedule for proceeding, specifically addressing, among other things, the status of the plaintiff’s FOIA request, the anticipated number of documents responsive to the request, and the anticipated date of the documents’ release.

On June 28th, 2010, the parties submitted their status report from their conference. The defendant reported that it had completed its search for all potentially responsive documents to plaintiff’s FOIA request, and they amounted to around 1,700 pages. The defendant reported that it had forwarded all potentially responsive documents for processing and classification review, and that it expected to be finished processing all 1,700 pages by November 15th, 2010.

On November 30th, 2010, the parties submitted their updated status report. The defendant reported that it had completed processing plaintiff’s FOIA request and had released all responsive, non-exempt information to plaintiff. Thus, on December 2nd, 2010, Judge Kollar-Kotelly ordered the defendant to submit its motion for summary judgment and all parties to submit their motions and cross-motions.

On March 4th, 2011, the defendant moved for summary judgment. It claimed that, because that the FBI had satisfied its burden under FOIA and had released all reasonable, segregable information that was neither exempt nor not subject to FOIA to the plaintiff, the lawsuit should be resolved.

However, on April 5th, 2011, the plaintiff filed a memorandum, partially opposing the defendant's motion for summary judgment, and supporting its own cross-motion for summary judgment, submitted on the same day. In it, the plaintiff supported most of the defendant’s motion, but disputed the FBI’s continued withholding of five pages of material showing charts and statistical information related to the FBI’s use of expiring Patriot Act provisions. The plaintiff claimed that this information was non-exempt, responsive material to its FOIA request, and the defendant had not sufficiently proved that it legitimately withheld this information because the material did not pertain to national security or law enforcement.

On April 22nd, 2011, the defendant answered the plaintiff’s cross-motion for summary judgment. It claimed that the FBI was no longer withholding any material the plaintiff referenced in its cross-motion. Apparently, five out of six of the pages the plaintiff was seeking had already been inadvertently released to the plaintiff when the other responsive material was being processed, and the FBI just decided to voluntarily release the last remaining page, though the defendant maintained that these documents would have been exempt from FOIA under the deliberative process privilege. Because there was no longer any live issue at dispute, the defendant re-asserted that summary judgment should be granted.

On June 16th, 2011, the parties reached a settlement agreement to satisfy the plaintiff’s attorneys’ fees, expenses, and litigation costs. The defendant agreed to pay the plaintiff $4,000 for the costs associated with the lawsuit. In return, the plaintiff agreed to seek dismissal of the case with prejudice. The case was dismissed on June 16th, 2011.