EPIC Files FOIA Lawsuit Against the DOJ

Posted by K.M. Das On January 19, 2006, the Electronic Privacy Information Center (“EPIC”) filed a Freedom of Information Act (“FOIA”) lawsuit against the Department of Justice (“DOJ”) to attempt to expedite the DOJ’s production of documents relating to the National Security Agency’s domestic surveillance program. According to the complaint, filed in the United States District Court for the District of Columbia, on December 16, 2005, EPIC “requested under the FOIA [NSA] records てoncerning a presidential order or directive authorizing the [NSA], or any other component of the intelligence community, to conduct domestic surveillance with the proper authorization of the Foreign Intelligence Surveillance Court . . . .'” EPIC requested expedited handling of its FOIA requests “because they 1) involve a てatter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affects public confidence,’ . . .; and 2) pertain to a matter about which there is an てrgency to inform the public about an actual or alleged Federal government activity,’ and the requests were made by て person engaged in disseminating information . . . .'” EPIC also based its request for expedited processing on “the pendency of Congressional hearings on NSA’s warrantless domestic surveillance . . . .” EPIC’s complaint and a motion for preliminary injunction, which it also filed on January 19, 2006, acknowledge that “[b]y letter dated January 6, 2006, the [DOJ’s] Office of Intelligence Policy and Review (てIPR’) responded to [EPIC’s] December 16 letter and stated that てhe Office of Public Affairs granted your request for expedited treatment. OIPR further stated that てEPIC’s] request will be reviewed ahead of others routinely processed on a first-in, first-out basis . . . .” EPIC’s motion for preliminary injunction appears to be based primarily on the fact that OIPR has not informed EPIC “of an anticipated date for the completion of the processing of [EPIC’s] FOIA request,” and that fact that in a December 21, 2005 letter OIPR informed EPIC that it would “be unable to comply with the [statutory] twenty-working-day time limit in this case, as well as the ten additional days provided in the statute.” EPIC’s preliminary injunction motion seeks “an order requiring defendant to expedite the processing of plaintiff’s [FOIA] request for records concerning the warrantless surveillance program and to complete the processing of plaintiff’s request within 20 days.” In its opposition to EPIC’s motion for preliminary injunction, filed on January 26, 2006, the DOJ characterizes EPIC’s motion as “an attempt to use a procedural mechanism intended to provide emergency relief as a scheduling tool . . . .” The DOJ also notes that “[i]n a letter dated January 25, 2006, [the Office of Legal Counsel] similarly advised plaintiff that its request for expedited processing had been granted and that processing had begun. . . . Thus, all four DOJ components to which plaintiff sent its request have jumped the request to the beginning of their queues and are in the process of identifying responsive documents.” The DOJ has requested Judge Kennedy, to whom the case is assigned, to deny EPIC’s motion for a preliminary injunction because EPIC has failed to provide any proof that the DOJ is not processing EPIC’s request “as soon as practicable,” as required under FOIA (5 U.S.C. ャ゚ 552(a)(6)(e)(iii)). The DOJ argues that Judge Kennedy should deny EPIC’s motion for a preliminary injunction because “[EPIC’s] allegation that DOJ has violated FOIA is predicated on the assumption that the expedited processing provision of FOIA requires an agency to complete its processing within a specific period of time. The statute, however, does not require agencies to process expedited requests within a specific time limit.” Opposition at 11 (citing 5 U.S.C. ャ゚ 552(a)(6)(E)(III) (emphasis added); 28 C.F.R. ャ゚ 16.5(d)(4)). The DOJ also notes that EPIC is not likely to be able to prove that it will suffer irreparable harm, a prerequisite to a court granting a motion for preliminary injunction, because all four DOJ components from whom EPIC has sought documents (in addition to the OIPR and OLC, EPIC has sought documents from the Attorney General and the Office of Legal Policy) have granted EPIC’s requested expedited status. Marcia Hoffman, one of the attorneys representing EPIC, notes that “[t]he Senate Judiciary Committee will soon begin hearings on the issue, and some are calling for the appointment of an independent counsel. The debate is happening now. Now is the time that the public needs to be fully informed, not several months from now.”