Case: In re Opinions and Orders of this Court Containing Novel or Significant Interpretations of Law [FISA Docket Misc. 16-01; FISCR Docket Misc. 20-02]

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On October 19, 2016, the American Civil Liberties Union and the Media Freedom and Information Access Clinic of Yale Law School filed this motion in the Foreign Intelligence Surveillance Court (FISC) to unseal all of the court's orders and opinions containing "novel or significant interpretations of law" issued between September 11, 2001, and the passage of the USA FREEDOM Act on June 2, 2015. The ACLU argued that the First Amendment compelled release of these judicial decisions and that FISC Rule 62 gave the FISC discretion to publish its own orders, opinions, and decisions. Three years earlier (Docket Misc. 13-08), the ACLU had filed a similar motion, requesting the release of all opinions addressing the legal basis for bulk data collection under  FISA . The litigation under Misc. 13-08 was still ongoing at the time the ACLU filed this case, but the request in this case was broader, including opinions that were unrelated to bulk data collection.

While this motion was pending, FISC Judge Rosemary Collyer dismissed the motion in Misc. 13-08, concluding that the ACLU lacked standing. In March 2017, after a request from the ACLU to alter or amend Judge Collyer's earlier opinion, Judge Collyer called for an en banc reconsideration in Misc. 13-08 of whether the ACLU had standing. In light of the status of Misc. 13-08, on March 27, 2017, Judge Collyer issued an order in this case directing the parties to confer and discuss whether this case should be stayed.

The parties did not agree to stay the case. Instead, on March 29, 2017, the ACLU moved to delay briefing in light of the proceedings in Misc. 13-08. The court granted this request, delaying the briefing until June 2017. On June 8, 2017, the government filed its response to the motion, making the same argument it had made in Misc. 13-08—that the ACLU lacked standing because neither the First Amendment nor FISA Rule 62 gave the ACLU a right of access to FISC opinions. On June 30, 2017, the ACLU filed a response, arguing that well-established First Amendment law provided the ACLU with a right to judicial opinions in every Article III court, except for the FISC. The ACLU thus argued that lack of access to FISC opinions was "the one federal court in which the public is denied access to judicial interpretations of public laws, individual rights, and limitations on government power."

On June 14, 2018, the ACLU filed a motion to consolidate this docket with Misc. 13-08, arguing that the legal issues between the two overlapped extensively, including questions of subject matter jurisdiction.

On February 11, 2020, FISC released its opinion. Judge Collyer clarified that the movants were seeking a large amount of redacted, non-public material in opinions addressing the bulk collection of data. The court found that it had subject matter jurisdiction over the Motion for the Release of Court Records but the First Amendment did not confer a qualified right of public access to the material sought, and there was no reason for the court to exercise any discretion it might have had in granting the relief requested. Thus, the Motion for the Release of Court Records was denied and the motion dismissed. Judge Collyer also denied the the motion to consolidate this docket with Misc. 13-08.

Judge Collyer left the FISC on March 7, 2020 without issuing any final judgment on the case. The ACLU filed a motion on July 10, 2020 respectfully asking for a status report and final ruling on the case. Judge Boasberg released an order on September 15, 2020 dismissing the case for lack of jurisdiction; he dismissed several cases making similar arguments for lack of jurisdiction on the same day. He analogized this case, which urged the Court to exercise jurisdiction over records release requests under a combination of FISC Rule 62 and the First Amendment implied right of access, to Misc. 13-08, which the FISC Court of Review (FISCR) had dismissed for lack of jurisdiction under an interpretation of "application" that excluded the one that the ACLU was making in this case. He noted that the categories of information sought were extremely broad, and that the parties would need to provide a more specific request in order to disclose the information.

On October 14, 2020, the ACLU filed a petition requesting appellate review of this case or a petition for a writ of mandamus with the FISCR, along with a request to transmit the FISC docket to the FISCR. The petition noted that the Misc. 13-08 decision meant that the FISCR did not have jurisdiction, but asked the FISCR to review the case all the same. The FISCR docketed the case as Misc. 20-02 on October 16, and released a show cause order asking the petitioners to demonstrate why the FISCR should not follow the ruling in Misc. 13-08.

The petitioners submitted their response to the show cause order on October 20, 2020. They urged the court to use this case to clarify the ruling interpreting the word "application" in the FISA in Misc. 13-08, which they claimed was too narrowly defined. They argued that this narrow reading threatened the constitutional rights of those that file petitions with the FISC to release court orders and opinions, since, if this definition is upheld, there likely would be no court that would grant review of these applications. The petitioners added that the FISCR should grant ancillary jurisdiction over the petition, since it involves decisions on releasing the court's own records. The petitioner's last argument noted that the FISCR can review this case under a petition for a writ of mandamus, which allows a higher court to demand a government official to properly exercise his or her authority. The petitioners argued that, given the constitutional concerns involving a lack of appellate review, demanding a lower court to exercise jurisdiction in this case, involving a balance of government power with individual rights, would be appropriate.

The government filed a response brief to the ACLU's filing on November 10, 2020. The government stressed the similarity between this case and the Misc. 13-08 case, and argued that the holding from that case should prevail here and the FISCR should decline to grant review. The government also argued that the FISCR should not certify this question of law to the Supreme Court, noting that the central issue of the case, the scope executive branch's classification power, was not novel enough to require Supreme Court intervention. It added that, since this is an adversarial case, the petitioners could seek certiorari without certifying the question of law to the Supreme Court.

On November 19, FISCR Presiding Judge David Sentelle released a brief opinion and order siding with the government and finding that the court lacked jurisdiction over the ACLU's claims. Judge Sentelle highlighted the recency of the Misc. 13-08 opinion, and said that this case was not different enough to merit review of that opinion. He also declined to certify this question of law to the Supreme Court.

On April 19, 2021, the ACLU filed a petition for writ of certiorari. On November 1, 2021, the Supreme Court denied certiorari, with Justices Gorsuch and Sotomayor dissenting.