Electronic Frontier Foundation v. Office of the Director of National Intelligence

542 F. Supp. 2d 1181, 2008 U.S. Dist. LEXIS 95135, 2008 WL 920469
CourtDistrict Court, C.D. California
DecidedApril 4, 2008
DocketNo. C 08-01023 JSW
StatusPublished
Cited by4 cases

This text of 542 F. Supp. 2d 1181 (Electronic Frontier Foundation v. Office of the Director of National Intelligence) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Electronic Frontier Foundation v. Office of the Director of National Intelligence, 542 F. Supp. 2d 1181, 2008 U.S. Dist. LEXIS 95135, 2008 WL 920469 (C.D. Cal. 2008).

Opinion

ORDER GRANTING PRELIMINARY INJUNCTION

JEFFREY S. WHITE, District Judge.

Before the Court is the motion for a preliminary injunction filed by Plaintiff Electronic Frontier Foundation (“Plaintiff’). Having considered the parties’ pleadings, the relevant legal authority, and having had the benefit of oral argument, the Court hereby GRANTS Plaintiffs motion for a preliminary injunction.

BACKGROUND

On August 5, 2007, President Bush signed into law the Protect America Act of 2007, which amended the Foreign Intelligence Surveillance Act (“FISA”) to expand the government’s authority to gather intelligence with the help of domestic communications service providers, and to protect telecommunications companies from future legal liability for their role in the surveillance activity. Pub.L. No. 110-55, 121 Stat. 552.

The Protect America Act was set to expire in February 2008 without further congressional action. President Bush indicated that the Administration would push for more extensive, and likely retroactive, legal immunity for the telecommunications companies. (Declaration of Marcia Hof-mann (“Hofmann Deck”), Ex. F.) Since the time of the passage of the Protect America Act, Congress has continued to consider additional changes to federal surveillance law, and Congress still is considering whether to give telecommunications carriers legal immunity for their cooperation in the government’s surveillance program. The House of Representatives passed the RESTORE Act of 2007, which would not protect telecommunications carriers from civil liability. H.R. 3773 (as passed by House). On February 21, 2008, however, the Senate passed a version of legislation to amend FISA, which purports to require dismissal of any state or federal lawsuit against a telecommunications carrier for facilitating government surveillance, if the Attorney General certifies to the court that the company was assisting in certain intelligence activity authorized by the President. H.R. 3773, FISA Amendments Act of 2008 (amendment as agreed to by Senate).

This action arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff, the non-profit Electronic Frontier Foundation, seeks a preliminary injunction ordering defendants, the Office of the Director of National Intelligence (“ODNI”) and the Department of Justice (“DOJ”) to expedite the processing and release of records concerning efforts of the agencies and the telecommunication industry to push for changes to federal surveillance law, especially to ensure that telecommunications carriers are not held accountable for their participation in recent governmental surveillance efforts. Defendants ODNI and the DOJ acknowledge that the requested information qualifies for expedited processing, but nonetheless, the defendant agencies have failed to process Plaintiffs requests within the statutory time frame of twenty business days for a standard request that is not entitled to expedited treatment.

Plaintiff seeks an order compelling the timely processing and production of the requested documents. Plaintiff contends that such production is critical because the information requested is directly relevant to understanding the agencies’ roles in lobbying on behalf of telecommunications pro[1184]*1184viders for legislation designed to compel the dismissal of lawsuits against the telecommunications companies, more than 40 of which are currently consolidated and pending before this Court. In re NSA Telecommunications Records Litigation (MDL Docket No. 06-1791 VIEW).

On December 21, 2007, Plaintiff faxed two letters to ODNI and the DOJ Office of the Attorney General, Office of Legislative Affairs, Office of Legal Policy, Office of Legal Counsel, and National Security Division, requesting under FOIA all records from September 1, 2007 to December 21, 2007 concerning “briefing, discussions, or other exchanges” that agency officials

have had with 1) members of the Senate or House of Representatives and 2) representatives or agents of telecommunications companies concerning amendment to FISA, including any discussion of immunizing telecommunications companies or holding them otherwise unaccountable for their role in government surveillance activities. This request includes, but is not limited to, all email, appointment calendars, telephone message slips, or other records indicating that such briefings, discussions, or other exchanges took place.1

(Hofmann Deck, Exs. K-N.) In each of its letters, Plaintiff requested that the processing of the requests be expedited because they seek the disclosure of information about which there is “[a]n urgency to inform the public about an actual or alleged [fjederal [government activity,” and were “made by a person primarily engaged in disseminating information,” as provided in 5 U.S.C. § 522(a)(6)(E)(v)(II), 32 C.F.R. § 1700.12(c)(2), and 28 C.F.R. § 16.5(d)(l)(ii). (Id.)

Each of the agencies granted Plaintiffs request for expedition. (Id., Exs. O, P, and S.) Notwithstanding the agencies’ decisions to process Plaintiffs requests (made on December 21, 2007) in an expedited fashion, to date, neither defendant has completed the processing of those requests. The agencies have, therefore, exceeded the generally applicable twenty-day statutory deadline for processing standard, non-expedited FOIA requests. See 5 U.S.C. § 552(a)(6)(A). A governmental agency normally must process FOIA requests for agency records on a first-in, first-out basis. Ordinarily, agencies must respond to FOIA requests within twenty working days of their receipt of the requests. 5 U.S.C. § 552(a)(6)(A)(I). In 1996, Congress amended the FOIA to provide for “expedited processing” of certain requests. See Electronic Freedom of Information Amendments of 1996 (“EF-OIA”), Pub.L. No. 104-231, § 8 (codified at 5 U.S.C. § 552(a)(6)(E)). Expedited processing entitles the requester to move immediately to front of the agency’s processing queue. As part of the EFOIA, Congress directed agencies to promulgate regulations providing for expedited processing of requests for records (i) “in eases [1185]*1185in which the person requesting records demonstrates a compelling need,” and (ii) “in other cases determined by the agency.” 5 U.S.C. § 552(a)(6)(E)(I). EFOIA defines “compelling need” to mean, “with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v). The EFOIA further provides that “[a]n agency shall process as soon as practicable any request for records for which the agency has granted expedition.” 5 U.S.C.

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542 F. Supp. 2d 1181, 2008 U.S. Dist. LEXIS 95135, 2008 WL 920469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/electronic-frontier-foundation-v-office-of-the-director-of-national-cacd-2008.