Case: American Civil Liberties Union v. Department of Justice

1:03-cv-02522 | U.S. District Court for the District of Columbia

Filed Date: Dec. 10, 2003

Closed Date: 2004

Clearinghouse coding complete

Case Summary

On Dec. 10, 2003, the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), the American Booksellers Foundation for Free Expression (ABFFE), and the Freedom to Read Foundation (FTRF) filed this lawsuit against the Department of Justice (DOJ) under the Freedom of Information Act (FOIA). The plaintiffs sought disclosure of DOJ and Federal Bureau of Investigation (FBI) records related to the DOJ's implementation of Section 215 of the USA PATRIOT Act. This case wa…

On Dec. 10, 2003, the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), the American Booksellers Foundation for Free Expression (ABFFE), and the Freedom to Read Foundation (FTRF) filed this lawsuit against the Department of Justice (DOJ) under the Freedom of Information Act (FOIA). The plaintiffs sought disclosure of DOJ and Federal Bureau of Investigation (FBI) records related to the DOJ's implementation of Section 215 of the USA PATRIOT Act. This case was filed in the U.S. District Court for the District of Columbia and assigned to Judge Ellen S. Huvelle.

In Aug. 2002, the plaintiffs filed a FOIA request to obtain records related to the FBI's implementation of the Patriot Act's surveillance provisions. Enacted in 2001, the Patriot Act substantially expanded the government's power to collect information about people living in the United States. In particular, Section 215 of the Act allowed the FBI to require disclosure from any person or organization of any tangible thing without probable cause or individualized suspicion, as long as there was an ongoing foreign intelligence or terrorism investigation.

In their FOIA request, the plaintiffs sought expedited processing, but the government did not comply. In an earlier case, the plaintiffs filed a lawsuit on Oct. 24, 2002 and moved for a preliminary injunction on Nov. 13, 2002. After a hearing, the court ordered the government to process the FOIA request. Although the government released 391 pages of responsive material, the government relied on an exemption to FOIA and issued the documents in heavily redacted form. One of the redacted documents was a list of times when the FBI had invoked Section 215 of the Patriot Act between Oct. 26, 2001, and Feb. 7, 2003. Both the list itself and the line indicating the total number of times that the FBI used Section 215 were redacted. The U.S. District Court for the District of Columbia granted the government's motion for summary judgment, upholding the government's withholding under Exemption 1 of FOIA. This case is available in this Clearinghouse.

In the following months, there was increased public concern about the Patriot Act and Section 215. The Attorney General issued a memo stating that Section 215 had never been used before and in doing so, declassified the information. The memo did not explain why the government was previously insistent that national security would be compromised if it released the number of times it had invoked Section 215. The plaintiffs then contacted former government counsel in the prior litigation and he agreed to request an unredacted copy of the Section 215 List from the FBI. However, the FBI did not respond to the attorney's request.

As a result, on Oct. 23, 2003, the plaintiffs submitted a FOIA request to the FBI seeking the following:

1. An unredacted copy of the Section 215 List, containing the total number of Section 215 requests received by the FBI; and

2. Any and all records relating to Section 215 of the Patriot Act, including any and all records indicating the number of times Section 215 has been used.

The plaintiffs again sought expedited processing of the FOIA request on two grounds: (1) that the records related to a matter of widespread media interest implicating possible questions about the government's integrity which affect public confidence; and (2) that the plaintiffs were primarily engaged in the dissemination of information and there is an urgency to inform the public about an actual or alleged government activity. However, on Oct. 30, 2003, the FBI told the plaintiffs that their request for expedited processing had been denied. The plaintiffs then engaged in a protracted back-and-forth with the FBI's Office of the General Counsel, during which the plaintiffs attempted to obtain an unredacted copy of the Section 215 List. However, they were ultimately unable to obtain the List.

In its answer to the plaintiffs' complaint, the government raised grounds for dismissal, but did not file a dispositive motion. As a result, Judge Huvelle issued an order directing the government to file either a motion to dismiss or a motion for summary judgment. On Feb. 17, 2004, the government moved for partial summary judgment on the plaintiffs' FOIA request for the Section 215 List and the request for expedited processing. The government argued that the doctrine of claim preclusion barred the plaintiffs from re-litigating the release of an unredacted copy of the Section 215 List, as the court previously ruled the document was properly withheld. Additionally, the government argued that the court should deny plaintiffs' request for expedited processing because the plaintiffs failed to show that their FOIA request deserved expedited treatment at the expense of earlier submitted requests.

On Mar. 1, 2004, the plaintiffs also filed a cross motion for partial summary judgment, arguing that there were no genuine issues of material fact with respect to the government's non-compliance with the FOIA.

On May 10, 2004, Judge Huvelle ordered that the plaintiffs were entitled to expedited processing of their request and that the government was required to process the request for all records relating to Section 215 "as soon as practicable." ACLU v. DOJ, 321 F. Supp. 2d 24 (D.D.C. 2004). Judge Huvelle also ordered that the government had properly withheld the information contained in the Section 215 List.

Regarding the court's holding on expedited processing, Judge Huvelle weighed three factors in determining that the plaintiffs had demonstrated an "urgency to inform" and hence a "compelling need" for the requested documents. Regarding the first two factors —whether the request concerned a matter of current exigency to the American public and whether the consequences of delaying a response would compromise a significant recognized interest—the court noted the records' relation to current government surveillance efforts and held that the potential invasion of the public's privacy interests was of immediate concern. Regarding the third factor, the government conceded that the plaintiffs' request concerned federal government activity. Thus, the court found that the government had erroneously denied the plaintiffs' request for expedited processing. The court found that the plaintiffs also met the media-related standard for expedited processing. The plaintiffs had cited numerous newspaper articles about the Patriot Act, which the court held was sufficient to demonstrate that the subject matter of their request involved a matter of widespread media interest concerning the government's integrity.

Regarding the court's holding on the government's argued FOIA exemption, the court held that the doctrine of res judicata did not preclude the plaintiffs' request for the redacted Section 215 List. The court reasoned that the plaintiffs were attempting litigate a new question: whether the statistic they sought was properly withheld in light of the Attorney General's declassification decision with respect to that statistic. However, the court nonetheless held that the government had provided a sufficiently detailed and persuasive explanation to justify the continued withholding of the redacted Section 215 List under Exemption 1, FOIA's national security exemption.

In Aug. 2004, the parties agreed to a settlement. In exchange for the government's disclosure of the requested documents, the plaintiffs filed a motion to dismiss the case with prejudice on Aug. 24, 2004.

Though not all of the documents released by the government are available online, this page references some of their contents.

Following litigation about attorneys' fees, the docket ends in 2004. It is unclear what resulted with respect to attorneys' fees.

Summary Authors

Eva Richardson (9/30/2018)

Related Cases

American Civil Liberties Union v. Department of Justice, District of Columbia (2002)

People


Judge(s)

Huvelle, Ellen Segal (District of Columbia)

Attorneys(s) for Plaintiff

Beeson, Ann (District of Columbia)

Hofmann, Marcia (California)

Jaffer, Jameel (New York)

Sobel, David L. (District of Columbia)

Spitzer, Arthur (District of Columbia)

Attorneys(s) for Defendant

Gomez, Raphael O. (District of Columbia)

Shapiro, Elizabeth J. (District of Columbia)

Judge(s)

Huvelle, Ellen Segal (District of Columbia)

Attorneys(s) for Plaintiff

Beeson, Ann (District of Columbia)

Hofmann, Marcia (California)

Jaffer, Jameel (New York)

Sobel, David L. (District of Columbia)

Spitzer, Arthur (District of Columbia)

Attorneys(s) for Defendant

Gomez, Raphael O. (District of Columbia)

Shapiro, Elizabeth J. (District of Columbia)

Documents in the Clearinghouse

Document

1:03-cv-02522

Docket [PACER]

Sept. 3, 2004

Sept. 3, 2004

Docket

[Untitled]

No Court

Dec. 4, 1981

Dec. 4, 1981

Discovery Material/FOIA Release

1:03-cv-02522

Rules of the Foreign Intelligence Surveillance Court

Foreign Intelligence Surveillance Court

Nov. 29, 2000

Nov. 29, 2000

Discovery Material/FOIA Release

National Security Letter Matters

No Court

Nov. 28, 2001

Nov. 28, 2001

Discovery Material/FOIA Release

New Legislation Patriot Act of 2001 Provisions Addressing Investigative Issues

No Court

June 19, 2002

June 19, 2002

Discovery Material/FOIA Release

1:03-cv-02522

Order

Foreign Intelligence Surveillance Court

Jan. 1, 2003

Jan. 1, 2003

Discovery Material/FOIA Release

1:03-cv-02522

Application for Certain Business Records for Foreign Intelligence Purposes

Foreign Intelligence Surveillance Court

Jan. 1, 2003

Jan. 1, 2003

Discovery Material/FOIA Release

Transactional Records NSLs Since 10/26/2001

No Court

Jan. 21, 2003

Jan. 21, 2003

Discovery Material/FOIA Release

Business Record Applications Delegation of Authority

No Court

Oct. 10, 2003

Oct. 10, 2003

Discovery Material/FOIA Release

Memorandum

No Court

Oct. 15, 2003

Oct. 15, 2003

Discovery Material/FOIA Release

Resources

Docket

Last updated July 23, 2022, 3:08 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against DEPARTMENT OF JUSTICE (Filing fee $ 150.) , filed by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION.(jf, ) (Entered: 12/16/2003)

Dec. 10, 2003

Dec. 10, 2003

SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 12/16/2003)

Dec. 10, 2003

Dec. 10, 2003

2

NOTICE OF RELATED CASE by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION. Case related to Case No. 02−2077. (jf, ) (Entered: 12/16/2003)

Dec. 10, 2003

Dec. 10, 2003

3

LCvR 7.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PLAINTIFFS (jf, ) (Entered: 12/16/2003)

Dec. 10, 2003

Dec. 10, 2003

4

NOTICE of Appearance by Elizabeth J. Shapiro on behalf of DEPARTMENT OF JUSTICE (Shapiro, Elizabeth) (Entered: 01/09/2004)

Jan. 9, 2004

Jan. 9, 2004

5

ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Shapiro, Elizabeth) (Entered: 01/09/2004)

Jan. 9, 2004

Jan. 9, 2004

6

NOTICE of Appearance by Arthur B. Spitzer on behalf of all plaintiffs (Spitzer, Arthur) (Entered: 01/12/2004)

Jan. 12, 2004

Jan. 12, 2004

7

ORDER that defendant shall file a motion to dismiss or for summary judgment on or before February 16, 2004.. Signed by Ellen S. Huvelle on 1/14/04. (BL, ) (Entered: 01/14/2004)

Jan. 14, 2004

Jan. 14, 2004

8

ENTERED IN ERROR..... MOTION for Summary Judgment Partial by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)

Feb. 17, 2004

Feb. 17, 2004

9

ENTERED IN ERROR..... MOTION for Summary Judgment partial by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)

Feb. 17, 2004

Feb. 17, 2004

10

ENTERED IN ERROR...... MOTION for Summary Judgment Statement of Material Facts/Motion for Partial Summary Judgment by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)

Feb. 17, 2004

Feb. 17, 2004

11

ENTERED IN ERROR..... MOTION to Stay Motion for Partial Open America Stay by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)

Feb. 17, 2004

Feb. 17, 2004

12

ENTERED IN ERROR..... MOTION to Stay Memorandum in support of Motion for Partial Open America Stay by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 2/18/2004 (rje, ). (Entered: 02/17/2004)

Feb. 17, 2004

Feb. 17, 2004

13

MOTION for for Partial Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order # 2 Affidavit # 3 Exhibit)(Gomez, Raphael) Modified on 2/20/2004 (rje, ). (Entered: 02/18/2004)

Feb. 17, 2004

Feb. 17, 2004

NOTICE OF CORRECTED DOCKET ENTRY. Document Nos. 8, 9 & 10 were Entered in Error and counsel was instructed to refile said pleadings as one filing entry with the necessary attachments and not as separate filing entries. (Entered: 02/18/2004)

Feb. 18, 2004

Feb. 18, 2004

NOTICE OF CORRECTED DOCKET ENTRY. Document Nos. 11 and 12 were Entered in Error and counsel was instructed to refile the motion with order and exhibits as attachments and not as two separate filing entries. (rje, ) (Entered: 02/18/2004)

Feb. 18, 2004

Feb. 18, 2004

14

MOTION For a Partial Stay of Proceedings by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6)(Gomez, Raphael) Modified on 2/20/2004 (rje, ). (Entered: 02/18/2004)

Feb. 18, 2004

Feb. 18, 2004

15

MOTION to Stay Proceedings Related to Defendant's Open America Motion by AMERICAN CIVIL LIBERTIES UNION. (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 03/01/2004)

March 1, 2004

March 1, 2004

16

Memorandum in opposition to motion re 13 for partial summary judgment filed by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION. (Attachments: # 1 Exhibit Exhibit A Part 1# 2 Exhibit Exhibit A Part 2# 3 Exhibit Exhibit A Part 3# 4 Exhibit Exhibit A Part 4# 5 Exhibit Exhibit A Part 5# 6 Exhibit Exhibit B# 7 Exhibit Exhibit C# 8 Statement of Material Facts# 9 Proposed Order)(Spitzer, Arthur) (Entered: 03/01/2004)

March 1, 2004

March 1, 2004

17

Cross MOTION for Summary Judgment (Partial) by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION. (Attachments: # 1 Exhibit Exhibit A Part 1# 2 Exhibit Exhibit A Part 2# 3 Exhibit Exhibit A Part 3# 4 Exhibit Exhibit A Part 4# 5 Exhibit Exhibit A Part 5# 6 Exhibit Exhibit B# 7 Exhibit Exhibit C# 8 Statement of Material Facts# 9 Proposed Order)(Spitzer, Arthur) (Entered: 03/01/2004)

March 1, 2004

March 1, 2004

18

RESPONSE to Plaintiffs' Motion to Stay Proceedings Related to Defendant's Open America Motion filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order Proposed Order)(Gomez, Raphael) (Entered: 03/02/2004)

March 2, 2004

March 2, 2004

19

MOTION for Extension of Time to File Response/Reply Defendant's Motion And Memorandum To Extend Time by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order Proposed Order)(Gomez, Raphael) (Entered: 03/02/2004)

March 2, 2004

March 2, 2004

Minute ORDER granting 15 Motion to Stay, granting 19 Motion for Extension of Time to File Reply to 3/15/2004. Signed by Judge Ellen S. Huvelle on 3/3/04. (BL, ) (Entered: 03/03/2004)

March 3, 2004

March 3, 2004

20

REPLY in support of motion re 13 Memorandum of Points and Authorities in Reply to Plaintiffs' Opposition to Defendant's Motion for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Supplemental Declaration of David M. Hardy)(Gomez, Raphael) (Entered: 03/15/2004)

March 15, 2004

March 15, 2004

21

Memorandum in opposition to motion re 17 Memorandum of Points and Authorities in Opposition to Plaintiffs' Cross Motion for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Supplemental Declaration of David M. Hardy)(Gomez, Raphael) (Entered: 03/15/2004)

March 15, 2004

March 15, 2004

22

ENTERED IN ERROR.....Memorandum in opposition to motion re 17 Defendant's Proposed Order/Defendant's Opposition to Plaintiffs' Cross Motion for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Gomez, Raphael) Modified on 3/16/2004 (jf, ). (Entered: 03/15/2004)

March 15, 2004

March 15, 2004

NOTICE OF CORRECTED DOCKET ENTRY. Document No. 22 was entered in error and counsel was instructed not to re−file said pleading. Proposed Orders should not be docketed using the event Memorandum In Opposition. (jf, ) (Entered: 03/16/2004)

March 15, 2004

March 15, 2004

23

REPLY in support of motion re 17 Plaintiff's Cross−Motion for Partial Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION. (Sobel, David) (Entered: 03/22/2004)

March 22, 2004

March 22, 2004

24

ORDER granting in part and denying in part 13 Motion for Summary Judgment, finding as moot 14 Motion to Stay, granting in part and denying in part 17 Motion for Summary Judgment . Signed by Judge Ellen S. Huvelle on 5/10/04. (BL, ) (Entered: 05/10/2004)

May 10, 2004

May 10, 2004

25

MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on 5/10/04. (BL, ) (Entered: 05/10/2004)

May 10, 2004

May 10, 2004

26

ORDER re briefing scheduling. Signed by Judge Ellen S. Huvelle on 5/21/04. (BL, ) (Entered: 05/21/2004)

May 21, 2004

May 21, 2004

27

Unopposed MOTION for Leave to Appear Admission Pro Hac Vice by AMERICAN CIVIL LIBERTIES UNION. (Sobel, David) (Entered: 05/24/2004)

May 24, 2004

May 24, 2004

Minute ORDER granting 27 Motion for Leave to Appear pro hac vice (Jaffer). Signed by Judge Ellen S. Huvelle on 5/24/04. (BL, ) (Entered: 05/24/2004)

May 24, 2004

May 24, 2004

28

MOTION for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Gomez, Raphael) (Entered: 07/28/2004)

July 28, 2004

July 28, 2004

MINUTE ORDER granting 28 Motion for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF JUSTICE. Signed by Judge Ellen S. Huvelle on 07/29/04. (lcesh1, ) (Entered: 07/29/2004)

July 29, 2004

July 29, 2004

29

NOTICE of Appearance by Marcia Clare Hofmann on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Hofmann, Marcia) (Entered: 08/04/2004)

Aug. 4, 2004

Aug. 4, 2004

30

Unopposed MOTION for Extension of Time to File Dispositive Motions by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Gomez, Raphael) (Entered: 08/11/2004)

Aug. 11, 2004

Aug. 11, 2004

Minute ORDER granting 30 Motion for Extension of Time to file its summary judgment motion. Signed by Judge Ellen S. Huvelle on 8/11/04. (BL, ) (Entered: 08/11/2004)

Aug. 11, 2004

Aug. 11, 2004

31

MOTION to Dismiss the Case with Prejudice by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Hofmann, Marcia) (Entered: 08/24/2004)

Aug. 24, 2004

Aug. 24, 2004

Minute ORDER granting 31 plaintiffs' Motion to Dismiss the Case with Prejudice. Signed by Judge Ellen S. Huvelle on 8/24/04. (lcesh1) (Entered: 08/25/2004)

Aug. 25, 2004

Aug. 25, 2004

32

Unopposed MOTION for Extension of Time to File Motion for Attorneys' Fees by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Hofmann, Marcia) (Entered: 09/02/2004)

Sept. 2, 2004

Sept. 2, 2004

Set/Reset Deadlines: Motions due by 9/30/2004. (gdf) (Entered: 09/14/2004)

Sept. 2, 2004

Sept. 2, 2004

Minute ORDER granting 32 plaintiffs' Motion for Extension of Time to 9/30/04 to file any motion for attorneys' fees pursuant to 5 U.S.C. section 522(a)(4)(E). Signed by Judge Ellen S. Huvelle on 9/2/04. (lcesh1, ) (Entered: 09/03/2004)

Sept. 3, 2004

Sept. 3, 2004

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: Dec. 10, 2003

Closing Date: 2004

Case Ongoing: No reason to think so

Plaintiffs

Plaintiff Description:

American Civil Liberties Union ("ACLU"), Electronic Privacy Information Center (“EPIC"), American Booksellers Foundation for Free Expression ("ABFFE"), and Freedom to Read Foundation ("FTRF")

Plaintiff Type(s):

Non-profit NON-religious organization

Attorney Organizations:

ACLU National (all projects)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Department of Justice, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

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

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Settlement

Litigation

Form of Settlement:

Court Approved Settlement or Consent Decree

Voluntary Dismissal

Content of Injunction:

Required disclosure

Issues

General:

Records Disclosure

Terrorism/Post 9-11 issues