Case: Electronic Privacy Information Center v. Department of Justice

On April 28, 2005, the Electronic Privacy Information Center (“EPIC”) filed this lawsuit in the U.S. District Court for the District of Columbia. Under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552, the plaintiffs sought expedited processing and release of agency records the plaintiff had requested from the Federal Bureau of Investigation (“FBI”), a component of the defendant, the United States Department of Justice. Specifically, the plaintiffs sought records of the FBI’s use of certain controversial provisions of the USA PATRIOT Act that were up for potential congressional reauthorization before December 31, 2005.

The PATRIOT Act was enacted quickly following the September 11, 2001 terrorist attacks. In part, the Act expanded the Foreign Intelligence Surveillance Act (“FISA”) powers. Because there was some concern about these expanded surveillance power prior to passage, the PATRIOT Act included a “sunset” provision; certain PATRIOT Act provisions were to become ineffective on December 31, 2005 without further congressional action. The plaintiff claimed there was a strong and urgent need for Congress and the public to know how the Federal Bureau of Investigation (“FBI”) had been using the sunsetting provisions, particularly as congressional committees were holding PATRIOT Act oversight hearings in April and May 2005 and determining whether to reauthorize the sunsetting provisions of the PATRIOT act before December 31, 2005.

EPIC had initially made a FOIA request to the FBI for agency records related to their use of the relevant provisions on March 29, 2005, requesting expedited processing of the request due to the public interest in how the FBI has used expanded law enforcement powers granted by the PATRIOT Act. On April 12, 2005, the FBI purportedly granted processing of plaintiff’s request, but as of the filing of the complaint on April 28, 2005, the FBI had not provided plaintiff with any indication of when its processing might be completed.

On June 14, 2005, EPIC filed a motion to compel expedited processing of its FOIA request. On October 4, 2005, the FBI provided an “interim response” to plaintiff’s FOIA request, consisting of 252 pages of responsive material, but did not indicate when it might complete processing of the request. The plaintiff argued in a memorandum request a status hearing that the volume of news coverage regarding the initial pages released, which the New York Times reported “disclosed at least a dozen violations of federal law or bureau policy from 2002 to 2004 in the handling of surveillance and investigative matters," reflected the significant public interest in the information and the pressing need for its prompt release.

On November 8, 2005, Judge Gladys Kessler granted the motion for expedited processing of EPIC’s FOIA Request. The parties were unable to come to an agreement regarding the timeline for processing the remaining pages, so Judge Kessler ordered on November 16, 2005 that defendant would complete the processing of 1500 pages every 15 calendar days and provide all responsive pages to plaintiff until processing was complete.

The defendant completed processing of the plaintiff’s requested documents on January 17, 2006. Judge Kessler order that the defendant pay the Electronic Privacy Information Center $12,000 for attorney’s fees and costs, and dismissed the action on August 29, 2006. The case is now closed.