Electronic Frontier Foundation v. United States Department of Justice

Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Partial Summary Judgment

N.D. Cal.October 13, 2016

16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. i MARK RUMOLD (SBN 279060) mark@eff.org NATHAN D. CARDOZO (SBN 259097) nate@eff.org AARON MACKEY (SBN 286647) amackey@eff.org ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ELECTRONIC FRONTIER FOUNDATION, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-02041-HSG NOTICE OF MOTION AND CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Date: December 15, 2016 Time: 2:00 pm Courtroom: Courtroom 10—19th Floor Hon. Haywood S. Gilliam Jr. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 1 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i i NOTICE OF MOTION PLEASE TAKE NOTICE that on December 15, at 2:00 pm in the United States Courthouse at San Francisco, California, Plaintiff, Electronic Frontier Foundation (“EFF”), will, and hereby does, cross move this Court for partial summary judgment. Pursuant to Federal Rule of Civil Procedure 56, EFF seeks a court order requiring the government to release records under the Freedom of Information Act, 5 U.S.C. § 552. EFF respectfully asks that this Court issue an order requiring the government to process and release all records improperly withheld from the public. This cross motion is based on this notice of motion, the memorandum of points and authorities in support of this cross motion, and all papers and records on file with the Clerk or which may be submitted prior to or at the time of the hearing, and any further evidence which may be offered. DATED: October 13, 2016 Respectfully submitted, /s/ Mark Rumold Mark Rumold ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 2 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i ii TABLE OF CONTENTS NOTICE OF MOTION .......................................................................................................................... i MEMORANDUM OF POINTS AND AUTHORITIES ...................................................................... 1 INTRODUCTION ................................................................................................................................ 1 FACTUAL BACKROUND .................................................................................................................. 2 I. Section 402 of the USA FREEDOM Act requires the declassification and disclosure of all “significant” FISC opinions. ....................................................................................... 2 II. EFF’s previous litigation with DOJ concerning “significant” FISC opinions. .................... 4 III. EFF’s Request seeks the disclosure of any “significant” FISC opinion, regardless of when it was written, which Section 402 requires to be declassified and released. .......... 5 PROCEDURAL BACKGROUND ....................................................................................................... 6 ARGUMENT ........................................................................................................................................ 7 I. FOIA establishes a presumption of disclosure, and the government bears the burden of demonstrating that withheld records are clearly exempt. ..................................................... 7 II. The agency has improperly refused to process EFF’s FOIA request, which reasonably describes a narrow and readily identifiable body of “significant” FISC opinions. .............. 8 A. The body of “significant” FISC opinions DOJ has produced to its congressional oversight bodies for over a decade constitutes a readily identifiable body of records responsive to EFF’s Request. ......................................................................... 10 B. DOJ has identified “significant” FISC opinions in response to other EFF FOIA litigation. ..................................................................................................................... 11 C. The government’s arguments—concerning the need for specialized training, for legal research, for subjective analysis, and the effort required to locate responsive records—all lack merit. ............................................................................................... 12 III. None of the “significant” FISC opinions responsive to EFF’s Request may be withheld in full under FOIA because Section 402 of USA FREEDOM requires them to be declassified and released. ................................................................................................... 17 A. The plain text of USA FREEDOM requires DOJ to declassify and release “significant” FISC opinions. ....................................................................................... 17 B. Section 402’s legislative history supports the plain textual requirement that the government declassify and release all “significant” FISC opinions. .......................... 18 C. Section 402 imposes a prospective declassification requirement that raises no retroactivity concerns. ................................................................................................. 20 CONCLUSION ................................................................................................................................... 21 Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 3 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i iii TABLE OF AUTHORITIES Cases ACLU of Northern California v. Dep’t of Justice, No. 12-cv-04008-MEJ, 2014 WL 4954121 (N.D. Cal. Sept. 30, 2014) .......................................................................................................... 9, 13 ACLU v. FBI, 59 F. Supp. 3d 584 (S.D.N.Y. 2014) ................................................................................................ 4 ALDF v. FDA, __ F.3d__, 2016 WL 4578362 (9th Cir. 2016) .................................................................................................. 8 BedRoc Ltd. v. United States, 541 U.S. 176 (2004) ........................................................................................................................ 17 Butler v. Nelson, 1997 WL 580331 (D. Mont. May 16, 1997) ................................................................................... 14 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......................................................................................................................... 8 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) .............................................................................................................................. 8 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) ......................................................................................................................... 7 Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) .......................................................................................................................... 8 EFF v. Dep’t of Justice, 11-cv-5221-YGR (N.D. Cal) .......................................................................................... 4, 11, 12, 17 EFF v. Dep’t of Justice, 141 F. Supp. 3d 51 (D.D.C. 2015) .............................................................................................. 5, 17 EFF v. Dep’t of Justice, 14-cv-00760-RMC (D.D.C.) ....................................................................................................... 4, 20 EFF v. Dep’t of Justice, 2014 WL 3945646 (N.D. Cal. Aug. 11, 2014) ............................................................................... 17 EFF v. Dep’t of Justice, 57 F. Supp. 3d 54 (D.D.C. 2014) .................................................................................................... 10 EFF v. Dep’t of Justice, 11-cv-0441-ABJ (D.D.C.) ............................................................................. 4 Feshbach v. SEC, 5 F. Supp. 2d 774 (N.D. Cal. 1997) ................................................................................................. 8 Freedom Watch, Inc. v. CIA, 895 F. Supp. 2d 221 (D.D.C. 2012) ................................................................................................ 15 Gustafson v. Alloyd Co., 513 U.S. 561 (1995) ........................................................................................................................ 11 Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) ........................................................................................................... 21 Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 4 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i iv Lamie v. United States Trustee, 540 U.S. 526 (2004) ........................................................................................................................ 17 Landgraf v. USI Film Prods., 511 U.S. 244 (1994) .................................................................................................................. 20, 21 Marks v. Dep’t of Justice, 578 F.2d 261 (9th Cir. 1978) ...................................................................................................... 9, 13 Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986) ........................................................................................................ 14 Metro One Communications, Inc. v. C.I.R., 704 F.3d 1057 (9th Cir. 2012) ........................................................................................................ 18 Nat’l Sec. Counselors v. CIA, 898 F. Supp. 2d 233 (D.D.C. 2012) ........................................................................................ 8, 9, 15 Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101 (D.D.C. 2013) .......................................................................................... 14, 15 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) .......................................................................................................................... 7 Optivus Tech., Inc. v. Ion Beam Applications S.A., 03-2052, 2004 WL 5700631 (C.D. Cal. Aug. 31, 2004) ................................................................ 18 Ratzlaf v. United States, 510 U.S. 135, 143 (1994) ................................................................................................................ 11 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) .................................................................................................... 17, 18 Satterlee v. IRS, 2006 WL 3160963 (W.D. Mont. Oct. 30, 2006) ............................................................................ 14 West v. Jackson, 448 F. Supp. 2d 207 (D.D.C. 2006) ................................................................................................ 14 Yeager v. DEA, 678 F.2d 315 (D.C. Cir. 1982) .......................................................................................................... 9 Statutes 5 U.S.C. § 552 ................................................................................................................................... 7, 8 50 U.S.C. § 1801 ................................................................................................................................... 2 50 U.S.C. § 1809 ................................................................................................................................. 17 50 U.S.C. § 1871 ..................................................................................................................... 10, 11, 14 50 U.S.C. § 1872 ................................................................................................................. 3, 17, 18, 20 50 U.S.C. § 1881 ..................................................................................................................... 10, 11, 14 FISA Amendments Act of 2008, Pub. L. No. 110-261, (2008) .......................................................... 10 Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-4580 (2004) .............. 10 USA FREEDOM ACT, Pub. L. No. 114-23 ............................................................................ 1, 2, 3, 6 Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 5 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i v Rules Fed. R. Civ. P. 56 (a) ............................................................................................................................ 8 Legislative Materials 161 Cong. Rec. H2914 (daily ed. May 13, 2015) ............................................................................... 19 161 Cong. Rec. H2915 (daily ed. May 13, 2015) ............................................................................... 19 161 Cong. Rec. H2916 (daily ed. May 13, 2015) ............................................................................... 19 161 Cong. Rec. H2921 (daily ed. May 13, 2015) ............................................................................... 20 161 Cong. Rec. S3427 (daily ed. June 2, 2015) .................................................................................. 19 H. Rep. No. 114-109 (2015) ........................................................................................................... 2, 19 H. Rep. No. 93-876 (1974) ................................................................................................................... 9 S. Rep. No. 93-854 (1974) .................................................................................................................... 8 Other Authorities Charlie Savage & Scott Shane, Secret Court Rebuked NSA on Surveillance, N.Y. Times (Aug. 21, 2013) ................................................................................................................................................. 4 Ellen Nakashima, et al., Declassified Court Documents Highlight NSA Violations in Data Collection for Surveillance, Wash. Post (Sept. 10, 2013) ................................................................ 4 Merriam-Webster Dictionary .............................................................................................................. 18 Walter F. Mondale et al., No Longer a Neutral Magistrate: The Foreign Surveillance Court in the Wake of the War on Terror, 100 Min. L. Rev. 2251 (2016) ............................................................. 3 Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 6 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 1 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Secret law is fundamentally inconsistent with American democratic traditions. Yet, for nearly forty years, an important body of secret law was allowed to accumulate. Article III judges, serving on the Foreign Intelligence Surveillance Court (“FISC”), issued secret decisions that interpreted federal surveillance statutes and the Constitution—sometimes in ways that shaped the rights of millions of Americans. In June 2015, Congress addressed the problem: It passed the USA FREEDOM Act, Pub. L. No. 114-23 (2015). Section 402 of the Act requires the government to conduct declassification reviews of all “significant” decisions of the FISC and to publicly release those opinions to the greatest extent practicable. Over a year after the law’s enactment, however, the Department of Justice (“DOJ”) has yet to release, pursuant to the new law’s requirements, a single FISC opinion that was written before Section 402 took effect. To the contrary, the agency has represented that it believes Section 402 only applies to opinions authored after June 2015, when the law was passed. That interpretation is wrong. It conflicts with the text and purpose of the statute. Section 402 will have little effect if the government is allowed to keep nearly forty years of significant FISC decisions secret. This suit seeks the disclosure of those opinions through the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552—opinions that USA FREEDOM already requires the government to declassify and release. Not only has DOJ refused to release the opinions required by Section 402; it now refuses to even process EFF’s FOIA request for those opinions. Instead, DOJ raises a dubious procedural objection, arguing that EFF’s request, which mirrors the text of Section 402, is too vague and burdensome to process. Again, and as explained in depth below, the government is wrong. Indeed, the government’s position in this case appears more calculated to obstruct and delay than to raise a legitimate Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 7 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 2 complaint about EFF’s request. Congress passed both USA FREEDOM and FOIA to end secret law. DOJ should not be allowed to avoid those statutory obligations any longer. Accordingly, EFF respectfully urges the Court to grant its motion for partial summary judgment, to order the government to process EFF’s request and to declassify and release responsive opinions, just as FOIA and Section 402 of USA FREEDOM require. FACTUAL BACKROUND I. Section 402 of the USA FREEDOM Act requires the declassification and disclosure of all “significant” FISC opinions. On June 2, 2015, the USA FREEDOM Act (“USA FREEDOM”) became law. Pub. L. No. 114-23 (2015). The law was the culmination of nearly two years of congressional and public debate concerning the scope and propriety of our nation’s foreign intelligence surveillance laws and practices. See, e.g., H. Rep. No. 114-109 (2015). USA FREEDOM worked reforms to various aspects of the nation’s foreign intelligence surveillance authorities, including changes to the “business records” and pen-register/trap and trace provisions of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq. Pub. L. No. 114-23, §§ 101-110, §§ 201-202 (2015). Those reforms ended a program, operated by the NSA and FBI, that collected the call records of millions of Americans. See H. Rep. No. 114-109, pt. 1, at 2 (stating the law “prohibits bulk collection of records under Section 215” and that it also provides “greater privacy and civil liberties protections”). USA FREEDOM likewise imposed a variety of increased transparency and reporting requirements on the intelligence community, see, e.g., Pub. L. No. 114-23, §§ 108, 601-605, and it instituted reforms to the procedures of the Foreign Intelligence Surveillance Court (“FISC”), the statutorily created court, composed of Article III judges, that reviews the legality of government applications to conduct foreign intelligence surveillance. See id. at § 401-402; see also H. Rep. No. 114-109, pt. 1, at 2. Section 402 of USA FREEDOM ended the secrecy shrouding important opinions of the FISC. See H. Rep. No. 114-109, pt. 1, at 2. The need for greater transparency surrounding FISC Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 8 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 3 decisions owed, at least in part, to the FISC’s evolving role in the nation’s foreign intelligence surveillance regime. See Walter F. Mondale et al., No Longer a Neutral Magistrate: The Foreign Surveillance Court in the Wake of the War on Terror, 100 Min. L. Rev. 2251 (2016) (“No Longer a Neutral Magistrate”). Congress originally established the FISC to serve as a neutral magistrate reviewing and approving applications for individualized foreign surveillance targets. Id. at 2262-63. Even today, these “run-of-the-mill FISA matters” constitute the “large majority” of the work of the FISC. Comments of the Judiciary Regarding the Foreign Intelligence Surveillance Act, filed by the Hon. John D. Bates, Director of the Administrative Office of the United States Courts (Jan. 10, 2014) (“Bates’ Comments”) at 1, 3 (attached hereto as Ex. B).1 But in the wake of the Sept. 11 attacks and subsequent amendments to FISA in 2008, the FISC’s role began to shift—away from approving individual applications to conduct surveillance, to a “meta-arbiter,” approving broad surveillance programs or the procedures used by the government to implement those programs. Mondale, No Longer a Neutral Magistrate, 100 Min. L. Rev. at 2263- 68. Although these significant matters only constitute a “small handful” of the FISC’s caseload, they have disproportionate effects: these cases often involve novel surveillance techniques, complicated technical or legal questions, or implicate the privacy interests of large numbers of people. See Bates’ Comments at 3. Section 402 sought to shed light on these important FISC decisions. Specifically, Section 402 of the Act states: Declassification Required -- Subject to subsection (b), the Director of National Intelligence, in consultation with the Attorney General, shall conduct a declassification review of each decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)) that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term’, and, consistent with that review, make publicly available to the greatest extent practicable each such decision, order, or opinion. Pub. L. No. 114-23, § 402(a) (codified at 50 U.S.C. § 1872). 1 All exhibits referenced herein are attached to the Declaration of Mark Rumold (“Rumold Decl.”). Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 9 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 4 Section 402 thus requires the government to “conduct a declassification review” and “make publicly available to the greatest extent practicable” all FISC opinions that include a “significant construction or interpretation of any provision of law.” Id. Section 402 allows the opinions to be released in redacted form, see § 402(b), and it provides an alternative to disclosure when the government determines national security concerns prevent it from releasing the opinion, even in redacted fashion. See § 402(c)(2). II. EFF’s previous litigation with DOJ concerning “significant” FISC opinions. As part of a broader effort to bring transparency to the government’s interpretation and use of its national security surveillance authorities, EFF has litigated three previous FOIA cases against DOJ—all initiated prior to USA FREEDOM’s enactment—seeking disclosure of significant decisions of the FISC. See EFF v. Dep’t of Justice, 11-cv-5221-YGR (N.D. Cal) (seeking release of “significant” FISC opinions concerning Section 215); EFF v. Dep’t of Justice, 11-cv-0441-ABJ (D.D.C.) (seeking release of [Caption Redacted], 2012 WL 9189263 (FISC 2011)); EFF v. Dep’t of Justice, 14-cv-00760-RMC (D.D.C.) (seeking release of multiple FISC opinions). Each of these cases resulted in disclosure of FISC opinions that aided the public’s understanding about federal surveillance law and the FISC. See, e.g., Ellen Nakashima, et al., Declassified Court Documents Highlight NSA Violations in Data Collection for Surveillance, Wash. Post (Sept. 10, 2013);2 Charlie Savage & Scott Shane, Secret Court Rebuked NSA on Surveillance, N.Y. Times (Aug. 21, 2013).3 In two of these cases, release of the opinions came over DOJ objections to disclosure that courts later determined to be meritless. See, e.g., ACLU v. FBI, 59 F. Supp. 3d 584, 591 (S.D.N.Y. 2014) (describing government arguments in EFF and ACLU litigation as “bear[ing] the hallmarks of opportunistic rummaging rather than a coherent strategy” and lacking “the candor this Court expects from it”); Memorandum Opinion at 28, EFF v. Dep’t of Justice, 12-cv-1441-ABJ (D.D.C. Sept. 30, 2 Available at http://www.washingtonpost.com/world/national-security/declassified-court- documents-highlight-nsa-violations/2013/09/10/60b5822c-1a4b-11e3-a628- 7e6dde8f889d_story.html. 3 Available at http://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-nsa-program- unconstitutional.html. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 10 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 5 2015) (ECF No. 47) (finding government’s argument to withhold FISC opinion had “no reasonable basis in law”). EFF’s third FOIA lawsuit sought disclosure of a series of specific FISC opinions EFF had identified, either through media reports or through citations contained in previously released FISC opinions. EFF v. Dep’t of Justice, 141 F. Supp. 3d 51, 54-55 (D.D.C. 2015). After the government disclosed multiple opinions, litigation in the case focused on the withholding of a single FISC opinion. Rumold Decl., ¶ 13. While briefing in the case was ongoing, however, USA FREEDOM was enacted. Id. For various reasons, EFF did not address the new law and its consequences in its briefing. See id., ¶ 14. Ultimately, the Court granted summary judgment for the government—but it did so without considering the applicability of Section 402 to the government’s withholding claims. See generally EFF v. Dep’t of Justice, 141 F. Supp. 3d 51 (D.D.C. 2015). EFF sought reconsideration of the Court’s decision in light of Section 402’s new declassification requirement. See Rumold Decl., ¶ 15. The government opposed on multiple grounds; and for the first time, it articulated its view that Section 402’s declassification requirement does not apply to FISC opinions issued prior to June 2, 2015—the date USA FREEDOM was passed. See DOJ’s Memorandum in Opposition to Motion for Reconsideration at 9-14, filed in EFF v. Dep’t of Justice, 14-cv-00760-RMC (D.D.C.) (ECF No. 28) (attached hereto as Ex. C). In light of the government’s unexpected and previously undisclosed argument (and rather than ask the court to decide the applicability of Section 402 in such an unusual posture), EFF voluntarily dismissed its Motion on February 16, 2016 and filed the FOIA request at issue here shortly after, on March 7, 2016. Rumold Decl., ¶¶ 16-17. III. EFF’s Request seeks the disclosure of any “significant” FISC opinion, regardless of when it was written, which Section 402 requires to be declassified and released. EFF filed the March 7, 2016 FOIA request (the “Request”) to obtain those “significant” FISC opinions that Section 402 of USA FREEDOM requires DOJ to declassify and release. See EFF FOIA Request dated March 7 2016, (“EFF’s Request”) at 1 (attached hereto as Ex. A). The Request, mirroring the language of the statute, sought: Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 11 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 6 Any “decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)),” [. . .] “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term.’” USA FREEDOM Act, Pub. L. 114-23, § 402(a) (2015), codified at 50 U.S.C. § 1872(a). Id. EFF divided its request into two different time periods, with Part 1 seeking all significant opinions issued from 1978 to June 1, 2015. Id. Part 2 sought all significant opinions issued from June 2, 2015 to present. Id. Only Part 1 of the Request is at issue in this case. PROCEDURAL BACKGROUND The procedural history is largely described in DOJ’s motion. See Def.’s Motion for Partial Summary Judgment (“DOJ MPSJ”) at 3-6 (ECF No. 29). However, EFF wishes to clarify its attempts to narrow the Request and to establish a reasonable production schedule. On March 25, 2016, by telephone, and April 5, 2016, by email, EFF discussed the Request with DOJ, and EFF offered various suggestions for prioritizing the release of requested opinions. EFF hoped the suggestions would “provide a useful starting place for processing the request.” Rumold Decl., ¶¶ 19-20. EFF never received a response from DOJ following those discussions. Id., ¶ 22. Months later, when the parties conferred after EFF filed this suit, EFF indicated that it would be willing to narrow its request to opinions within the previously identified prioritization-categories, if that narrowing would resolve the agency’s objections to the request. Id., ¶¶ 23-24. EFF also indicated its willingness to afford the agency an extended production schedule that would accommodate DOJ’s need to conduct declassification reviews of responsive opinions. Id., ¶ 25. Despite this offer, counsel for DOJ indicated that, even if EFF narrowed the Request as proposed, DOJ would still consider it to be an improper request under FOIA. Id., ¶ 26. /// /// /// /// Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 12 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 7 ARGUMENT This motion presents two questions: First, does EFF’s Request, which mirrors the language of Section 402, “reasonably describe[]” the records it seeks? It does. EFF’s Request seeks disclosure of a narrow and readily identifiable body of “significant” FISC opinions—a body of opinions the government has produced to Congress, pursuant to statute, for over a decade. In fact, DOJ has identified “significant” FISC opinions for EFF in previous FOIA litigation. Nothing prevents DOJ from doing the same here. All of the government’s arguments to the contrary lack merit. Second, may DOJ withhold under FOIA those FISC opinions responsive to EFF’s Request? It cannot. The text and legislative history of Section 402 confirm that the statute places a prospective obligation on the agency to declassify (or produce a declassified summary of) all “significant” FISC opinions, regardless of the date the opinion was written, and to release those opinions to the public. With an affirmative requirement to declassify and release significant FISC opinions, the government cannot withhold under FOIA the opinions responsive to EFF’s Request. Accordingly, summary judgment for EFF on both questions is appropriate. EFF urges this Court to order DOJ: (1) to process EFF’s Request, and (2) to declassify and release the “significant” FISC opinions responsive to the Request, just as Section 402 of USA FREEDOM requires. I. FOIA establishes a presumption of disclosure, and the government bears the burden of demonstrating that withheld records are clearly exempt. FOIA safeguards the American public’s right to know “what their Government is up to.” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). FOIA’s central purpose is nothing less than “ensur[ing] an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA requires disclosure of all agency records at the request of the public unless the records fall within one of nine narrow exemptions. See 5 U.S.C. § 552(b). To submit a proper request, all a requester must do is “reasonably describe[]” the requested records and follow the agency’s procedures for submitting requests. 5 U.S.C. § 552(a)(3)(A). Congress intended the burden on Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 13 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 8 requesters to be minimal, cautioning that the record “identification standard in the FOIA should not be used to obstruct public access to agency records.” Nat’l Sec. Counselors v. CIA, 898 F. Supp. 2d 233, 274 (D.D.C. 2012) (quoting S. Rep. No. 93-854, at 10 (1974)). Once the agency has received the request, it is obligated to search for and process responsive records, and to disclose any information that does not fall within one of the Act’s exemptions. See 5 U.S.C. § 552(a)(3), (a)(6). The exemptions “have been consistently given a narrow compass,” and agency records that “do not fall within one of the exemptions are improperly withheld.” Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (internal quotation marks omitted). Ultimately, “disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal quotation and citation omitted). FOIA disputes are commonly resolved on motions for summary judgment. See ALDF v. FDA, __ F.3d__, 2016 WL 4578362, *1 (9th Cir. 2016) (en banc). As with any case, summary judgment is proper when the moving party shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (a); see also Feshbach v. SEC, 5 F. Supp. 2d 774, 779 (N.D. Cal. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). II. The agency has improperly refused to process EFF’s FOIA request, which reasonably describes a narrow and readily identifiable body of “significant” FISC opinions. DOJ knows precisely which records are responsive to EFF’s Request. As described above, EFF’s Request mirrored the language of Section 402 of USA FREEDOM, requesting, in relevant part: any “decision, order, or opinion” of the FISC or FISCR, issued from 1978 to June 1, 2015, “that includes a significant construction or interpretation of any provision of law[.]” EFF’s Request at 1 (Ex. A). Despite the agency’s hyperbole, identifying and processing these “significant” FISC opinions would be a simple and straightforward task—a task FOIA requires the agency to undertake.4 At the outset, the burden on a FOIA requester to “reasonably describe[]” records is a limited 4 DOJ does not generally dispute that EFF’s Request followed the governing rules for submitting a request, aside from the purported failure to adequately describe requested records. DOJ MPSJ at 7 n. 6. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 14 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 9 one: All the description must do is enable a “professional employee of the agency who [is] familiar with the subject area of the request” to locate requested records “with a reasonable amount of effort.” Marks v. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir. 1978) (quoting H. Rep. No. 93-876 at 6 (1974)).5 When deciding how to process a request, the agency is obligated to pursue “any ‘clear and certain’ lead it cannot in good faith ignore.” ACLU of Northern California v. Dep’t of Justice, No. 12-cv-04008-MEJ, 2014 WL 4954121, at *6 (N.D. Cal. Sept. 30, 2014) (citation omitted); see also Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982) (finding records “reasonably described” since the agency “knew ‘precisely’ which of its records had been requested”). Here, the agency failed to pursue—let alone mention to this Court in its opening brief or declaration—one such “clear and certain lead”: the decade’s worth of “significant” FISC opinions the agency has been required, by statute, to produce to its congressional oversight committees. Nor did the agency mention that it has used the term “significant” in other FOIA litigation with EFF to define and describe a specific type of FISC opinion. A knowledgeable DOJ-National Security Division (“NSD”) attorney knows what the “significant” opinions of the FISC are and can locate them with little effort. /// /// /// 5 DOJ argues, without citing any FOIA cases, that this “professional employee” test is an “objective one” and that DOJ need not introduce evidence that “their professionals are incapable of locating the requested records with a reasonable amount of effort.” DOJ MPSJ at 8 & n. 7 (emphasis in original). DOJ’s position is incorrect, a fact reflected in the absence of any pertinent decisions to support the proposition. See Nat’l Sec. Counselors v. CIA, 898 F. Supp. 2d 233, 278 (2012) (noting that whether a description is adequate “is a highly context-specific inquiry, ill-suited to abstract analysis.”) Under FOIA, the relevant test is whether “a professional employee of the agency who [is] familiar with the subject area of the request” could locate the records, Marks, 578 F.2d at 263 (emphasis added; quotations omitted), not whether a hypothetical, reasonably competent professional could. See DOJ MPSJ at 8 n. 7. However appropriate an objective test may be in other contexts, it is inappropriate here. Indeed, DOJ likely advances its “objective” test because it is well aware that its professionals are capable of locating the requested records, as explained in depth below. Under any circumstances, the Court need not decide whether the test is an objective or a subjective one, because EFF’s Request is proper under either standard. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 15 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 10 A. The body of “significant” FISC opinions DOJ has produced to its congressional oversight bodies for over a decade constitutes a readily identifiable body of records responsive to EFF’s Request. DOJ has been producing “significant” FISC opinions to Congress for over a decade. Indeed the word “significant”—to describe an “interpretation or construction” of law contained within a FISC opinion—is a term of art in FISA. Just like Section 402, two other provisions of FISA require the government to identify and provide to Congress the “significant” FISC opinions EFF has requested. For example, 50 U.S.C. § 1871(a)(4) requires the Attorney General to submit to the Intelligence and Judiciary Committees of both houses of Congress a “summary of significant legal interpretations of [FISA] involving matters before [the FISC] or the [FISCR].” (emphasis added). The Attorney General must additionally provide those committees with “all decisions, orders, or opinions” of the FISC or FISCR that “include [a] significant construction or interpretation of the provisions of [FISA].” 50 U.S.C. § 1871(a)(5) (emphasis added). Another provision of FISA requires similar identification and disclosure to congressional oversight committees. 50 U.S.C. § 1881f(b)(D) requires the Attorney General to provide a: description of the judicial review during the reporting period. . . and. . . a copy of an order or pleading in connection with such review that contains a significant legal interpretation of the provisions of section 1881a of this title. Id. (emphasis added). These are not new obligations, and they predate USA FREEDOM’s declassification requirement by many years. DOJ’s first statutory requirement to identify and produce “significant” FISC opinions was passed in 2004. See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 6002 (2004). And DOJ has been required to identify and produce FISC opinions concerning Section 1881a since 2008. See FISA Amendments Act of 2008, Pub. L. No. 110-261, § 707 (2008). Finally, DOJ has been able to identify these “significant” FISC opinions in the past to comply with its reporting requirements. See, e.g., EFF v. Dep’t of Justice, 57 F. Supp. 3d 54, 57 (D.D.C. 2014) (describing FISC opinion provided to Congress under 50 U.S.C. § 1871); see Letter Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 16 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 11 from Sens. Ron Wyden and Mark Udall to Attorney General Eric Holder, dated March 15, 2012, at 2 (describing congressional review of significant FISC opinions and noting DOJ’s commitment to create a “regular process for reviewing, redacting and releasing significant opinions of the FISA Court”) (attached hereto as Ex. D); see also Letter from the Hon. Reggie B. Walton to Sen. Diane Feinstein, dated March 27, 2013, at 1 (letter from then-Presiding Judge of the FISC stating his “understand[ing] that the Executive Branch provides the Intelligence and Judiciary Committees with all significant FISC opinions”) (attached hereto as Ex. E). That EFF’s Request specifically relied on the language of Section 402—indeed, citing the statute itself—is critical: the terms “significant construction” or “significant interpretation” appearing in Section 402, in 50 U.S.C. § 1871(a)(4), and in Section 1881f(b)(D) cannot “be read as a series of unrelated and isolated provisions.” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995). Rather, under the “normal rule of statutory construction,” those terms must be interpreted so that “identical words used in different parts of the same act . . . have the same meaning.” Id. at 570 (internal quotation and citation omitted); see also Ratzlaf v. United States, 510 U.S. 135, 143 (1994). Thus, a “significant” FISC opinion under § 1871(a)(4) or § 1881f(b)(D) must also be a “significant” FISC opinion for purposes of Section 402—and, critically, for purposes of EFF’s Request. Accordingly, all FISC opinions produced to Congress pursuant to these statutory obligations: (1) contain a “significant construction or interpretation” of the law—namely, FISA; and therefore (2) are within the four corners of EFF’s request. See EFF’s Request (requesting any FISC or FISCR opinion “that includes a significant construction or interpretation of any provision of law”) (emphasis added). B. DOJ has identified “significant” FISC opinions in response to other EFF FOIA litigation. Further undermining DOJ’s claims that it is unable to process EFF’s request, DOJ and EFF have used the term “significant” to define and describe FISC opinions, by agreement, in previous litigation. See Letter to the Court, filed in EFF v. Dep’t of Justice, 11-cv-5221-YGR (N.D. Cal. 2011) (ECF No. 32) (“Letter to the Court”), at 2 (attached hereto as Ex. F). DOJ makes no attempt to explain why it could locate “significant” FISC opinions in that case but cannot here. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 17 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 12 In 2011, EFF requested production of a broad category of records, including FISC opinions, relating to DOJ’s interpretation of Section 215 of the USA PATRIOT Act—the provision of FISA the NSA and FBI relied on to conduct the now-terminated bulk call records collection program. See supra at 2; Rumold Decl., ¶¶ 7-9. EFF eventually filed suit and, in an effort to narrow the scope of the litigation, the parties agreed—by stipulation—to only litigate the withholding of specific documents, including FISC opinions, “containing significant legal analysis or interpretation of Section 215[.]” Letter to the Court at 2; see also Order re: Holding Cross-Motions for Summary Judgment in Abeyance, 11-cv-5221 (N.D. Cal. Jul. 19, 2013) (ECF No. 62), at 2 (ordering government to complete processing of “[s]ignificant opinions or orders of the FISC”) (attached hereto as Ex. G). Importantly, EFF and DOJ used the term “significant legal analysis or interpretation” to distinguish, and limit, the type of FISC opinions at issue in the case. On the one hand, EFF disclaimed interest in FISC decisions concerning “garden variety” Section 215 orders or decisions, Rumold Decl., ¶ 10; instead, EFF sought to focus the litigation on FISC opinions involving the “sensitive collection program” (i.e., the bulk call record collection program) or other, similar programs, operated under Section 215. Id., ¶¶ 9-11. DOJ had no complaints about locating “significant” interpretations of Section 215 in previous litigation with EFF. To the contrary, the agency stipulated to it. The agency provides no reason to believe it cannot do the same again here. C. The government’s arguments—concerning the need for specialized training, for legal research, for subjective analysis, and the effort required to locate responsive records—all lack merit. The government’s crabbed view of its duty to search for requested records finds no support in the law. None of the government’s complaints about EFF’s Request justifies its refusal to search for the requested records. (1) Specialized Training: Processing EFF’s Request would require no more “specialized training” than processing any other request. As a threshold matter, DOJ cites no precedent, and EFF is aware of none, to suggest that the need for specialized training renders a request deficient. Indeed, Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 18 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 13 complying with any FOIA request presumably requires some amount of specialized training—e.g., knowledge of the rules and regulations governing disclosure and processing requests. Regardless, the agency conflates the knowledge and training necessary to locate responsive records with that needed to process requested records. See DOJ MPSJ at 9. The agency suggests that a request is valid only if an employee within the “FOIA and Declassification Unit” can both locate the requested records, without assistance from other agency personnel, and process them. Id. But that turns the test for whether a requester has “reasonably describe[d]” the records on its head. See Marks, 578 F.2d at 263. FOIA does not require that every agency employee be able to locate responsive records; nor that an employee in the FOIA department be able to locate the records without assistance. Instead, a request is sufficient if an employee “familiar with the subject area” is able to identify requested records. Id. Candidly, the agency appears to acknowledge that attorneys from the Office of Intelligence could identify the records responsive to EFF’s Request. See DOJ MPSJ at 9; Declaration of G. Bradley Weinsheimer (“Weinsheimer Decl.”),¶ 15 (noting that “even if the reviewer were an attorney, that attorney or attorneys would by necessity have to come from the Office of Intelligence, not the FOIA and Declassification Unit”) (ECF No. 29-1). Instead, DOJ argues that the burden placed on those attorneys would be too great. DOJ MPSJ at 9. That concession, however, settles the question: DOJ-NSD FOIA professionals can locate the requested records with the help of DOJ-NSD attorneys. If they can (without undue burden),6 then they must. See ACLU of Northern California, 2014 WL 4954121, at *6. (2) Legal Research: No legal research is required to fulfill EFF’s Request. As explained above, all DOJ-NSD need do, as a starting point, is identify and produce those “significant” FISC opinions it has produced to Congress since 2004. See supra at 9-11. DOJ’s primary complaint appears to concern conducting a exhaustive search. See DOJ MPSJ at 9-10 (suggesting the need to “conduct extensive legal research” and place each “opinion in its proper historical context”). But DOJ’s search need not even locate every responsive record: the test, 6 DOJ’s arguments concerning burden, discussed below, also lack merit. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 19 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 14 simply, is whether DOJ’s search was “adequate.” Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (noting the search “need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request”). EFF submits that simply asking DOJ-NSD attorneys for assistance in locating the requested records would likely yield most, if not all, of the “significant” FISC opinions in the agency’s possession. This would require only limited effort from DOJ attorneys and no legal research whatsoever. EFF thus does not quarrel with the authorities cited by the government. See DOJ MPSJ at 10 (citing Satterlee v. IRS, 2006 WL 3160963 (W.D. Mont. Oct. 30, 2006); West v. Jackson, 448 F. Supp. 2d 207 (D.D.C. 2006); Butler v. Nelson, 1997 WL 580331 (D. Mont. May 16, 1997)). The authorities simply have no application here. (3) Subjective Analysis: If the agency seeks a wholly objective measure to process the Request, the obvious starting points are those “significant” FISC opinions that DOJ has physically produced to Congress over the past decade. Additionally, as noted previously, the term “significant” is a term of art in FISA—one the agency has apparently already developed a methodology for evaluating. If the agency seeks further objective criteria to apply in its search—e.g., for opinions issued before its disclosure obligations to Congress began—it can employ the same internal DOJ methodology it used to evaluate whether disclosure to Congress was required under § 1871(a)(5) or § 1881f(b)(D). Finally, EFF provided DOJ with criteria to prioritize processing the Request. Although the agency has rejected EFF’s suggestions, they offer a number of objective measures for evaluating whether a FISC opinion is “significant,” including whether an opinion authorized “techniques that affect significant numbers of people,” “opinions addressing violations of laws or court orders,” or “recently issued opinions (e.g., those issued after 2001).” Rumold Decl., ¶ 20. The cases relied upon by DOJ are readily distinguishable from the facts of this case. DOJ chiefly relies on Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101 (D.D.C. 2013) to argue that EFF’s Request would improperly require subjective analysis. DOJ MPSJ at 11, 12. But the request at issue in Nat’l Sec. Counselors sought a much more nebulous body of records than the opinions Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 20 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 15 requested here. The plaintiff in that case sought “representative samples” of annual CIA reports on intelligence targets. 960 F. Supp. 2d at 157. That is, the request not only asked the agency to identify such reports, but to further analyze the results and produce only those that constituted “representative samples” and a “reasonable variety” of each year’s reports. Id. at 157-58. The court held the request failed to adequately describe records because its sampling demands imposed vague and malleable terms on CIA’s processing of the request. Id. at 158. Here, DOJ does not have to contend with vague or malleable terms that “cloak plaintiff’s request in more uncertainty.” Id. As described above, the term “significant” FISC opinion has a specific meaning—one imbued by statute and by practice within DOJ-NSD—that is far more definite than the records sought in Nat’l Sec. Counselors. DOJ’s reliance on Freedom Watch, Inc. v. CIA, 895 F. Supp. 2d 221 (D.D.C. 2012), is similarly misplaced. There, the plaintiff’s “virtually incomprehensible” request sought 49 categories of records about information leaked to several newspapers. Id. at 228. For example, the request would have required the CIA “to locate, review, redact, and arrange for inspection . . . anything ‘relating to’ . . . Iran, Israel, Iraq, North Korea, Russia, Azerbaijan, and others”—categories of records that, given the work of the CIA, are unfathomably broad. Id. at 229. Further, the request would have required the agency to undertake an internal investigation into the leaks and determine whether any laws were broken. Id. The court held that FOIA cannot be used “to force a federal agency to undertake grand jury style investigations.” Id. In contrast, the request here requires no broad investigative undertaking, nor does it demand from DOJ anything more than it has done for the past decade: to identify and produce “significant” opinions of the FISC. (4) Burden: The agency’s claims concerning the “unparalleled breadth” of the request are hyperbole. DOJ MPSJ at 12. As the agency knows, and as the former Chief Judge of the FISC, Judge John Bates, has stated, “the vast majority of FISA matters . . . involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specified target.” Bates’ Comments at 1, 3 (noting most FISC matters, like requests for search warrants or for pen register/trap-and-trace orders are similar to those ruled on Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 21 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 16 “[e]very day . . . by the district courts” in criminal matters) (Ex. B). These “run-of-the-mill FISA matters” constitute the “large majority” of the work of the FISC, “measured either by number of cases or allocation of time.” Id. at 1, 3. Thus, the agency greatly exaggerates when it claims that “each decision, order, or opinion—in every one of over 30,000 dockets—would need to be read in full text manually.” DOJ MPSJ at 13. In reality, there are only a “small handful of cases” that involve “novel or complex legal or technical issues.” Bates’ Comments at 3. This is a fact DOJ rather candidly acknowledges: “NSD ultimately does not expect there to be a voluminous set of responsive records to Part 1 of [EFF’s] request[.]” Weinsheimer Decl., ¶ 16.7 EFF’s Request applies only to that “small handful of cases” involving significant opinions—a handful of cases of which, as explained above, DOJ-NSD attorneys are undoubtedly well aware. After locating the relevant opinions, DOJ-NSD attorneys could hand them over to the NSD’s FOIA unit, for declassification review and eventual release, as Section 402 of USA FREEDOM requires. Responding to EFF’s Request thus would not require a line-by-line review of 30,000 dockets or a significant diversion of NSD-attorney resources, as the agency claims. /// /// /// /// /// /// /// /// /// /// 7 Indeed, the fact that NSD has expectations about the set of records responsive to EFF’s Request, itself, further calls into doubt the agency’s claims concerning its inability to process the Request. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 22 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 17 III. None of the “significant” FISC opinions responsive to EFF’s Request may be withheld in full under FOIA because Section 402 of USA FREEDOM requires them to be declassified and released. 8 Once the agency has processed EFF’s request, DOJ cannot withhold the FISC opinions responsive to EFF’s Request. The Request seeks only the “significant” FISC opinions that Section 402 already requires the government to publicly disclose. Accordingly, none of FOIA’s exemptions would justify the withholding, in full, of responsive opinions. This conclusion is powerfully supported by the plain text of Section 402 and its legislative history. Section 402 requires declassification and disclosure of “each” significant FISC opinion, regardless of when the opinion was authored.9 A. The plain text of USA FREEDOM requires DOJ to declassify and release “significant” FISC opinions. The plain text of Section 402 places an affirmative obligation on the government to review and declassify all “significant” opinions issued by the FISC. When construing a statute, courts must “first look to the language of the statute to determine whether it has a plain meaning.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (citation omitted). When the text’s plain meaning is unambiguous, the inquiry ends and the court’s sole function is to enforce the statute’s terms. BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004); Lamie v. United States Trustee, 540 U.S. 526, 534 (2004). 8 Section 402 contains an exception to the public disclosure requirement that allows the Director of National Intelligence (“DNI”) to waive the requirement if the DNI makes a determination that public disclosure would harm national security. 50 U.S.C. § 1872(c)(1). If that determination is made, however, the DNI must still make “publicly available an unclassified statement . . . summarizing the significant construction or interpretation” contained within the FISC decision. 50 U.S.C. § 1872(c)(2)(A). The summary must also include “a description of the context in which the matter arises and any significant construction or interpretation of any statute, constitutional provision, or other legal authority relied on by the decision.” Id. To date, EFF is not aware of any published summaries of opinions. 9 EFF is aware of at least six significant FISC opinions that DOJ has not declassified and released. As noted above, in previous litigation, DOJ refused to release a FISC opinion concerning 50 U.S.C. § 1809(a)(2), a provision of FISA that prohibits the government from using data it had acquired illegally. EFF v. Dep’t of Justice, 141 F. Supp. 3d 51, 54-55 (D.D.C. 2015). Additionally, at least five FISC opinions—identified by the agency as containing “significant legal analysis or interpretation of Section 215” in EFF v. Dep’t of Justice, 11-cv-5221-YGR—have not been disclosed. See EFF v. Dep’t of Justice, 2014 WL 3945646, *2 (N.D. Cal. Aug. 11, 2014). Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 23 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 18 Section 402 states: the Director of National Intelligence, in consultation with the Attorney General, shall conduct a declassification review of each decision, order, or opinion issued by the [FISC and FISCR] that includes a significant construction or interpretation of any provision of law. . . and, consistent with that review, make publicly available to the greatest extent practicable each such decision, order, or opinion. 50 U.S.C. § 1872(a) (emphasis added). The statute is clear: the declassification requirement extends to “each” significant FISC opinion. Id. The plain meaning of the word “each” is “every one of two or more people or things considered separately.” Merriam-Webster Dictionary (emphasis added).10 “Similarly, the Oxford English Dictionary (2d ed.1989) defines the word ‘each’ as meaning ‘every.’” Optivus Tech., Inc. v. Ion Beam Applications S.A., 03-2052, 2004 WL 5700631, at *13 (C.D. Cal. Aug. 31, 2004); see also Metro One Communications, Inc. v. C.I.R., 704 F.3d 1057, 1061 (9th Cir. 2012) (“To ascertain the plain meaning of terms, we may consult the definitions of those terms in popular dictionaries.”). There are no temporal limitations on the FISC opinions the statute requires to be reviewed. The only limitation is that the FISC opinion must contain a “significant construction or interpretation” of the law. 50 U.S.C. § 1872(a) Accordingly, the most straightforward reading of Section 402 is that the government must undertake a declassification review of “each,” and every one, of the FISC’s significant opinions and disclose those opinions “to the greatest extent practicable,” 50 U.S.C. § 1872(a), including those opinions requested by EFF. B. Section 402’s legislative history supports the plain textual requirement that the government declassify and release all “significant” FISC opinions. The legislative history of USA FREEDOM, too, shows that Section 402’s declassification requirement applies to all existing “significant” FISC opinions. At the outset, because the plain text of Section 402 is unambiguous, turning to legislative history is unnecessary. Satterfield, 569 F.3d at 951 (9th Cir. 2009) (The court’s “inquiry begins with the statutory text, and ends there as well if the text is unambiguous”) (internal quotation and citations 10 Available at http://www.merriam-webster.com/dictionary/each. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 24 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 19 omitted). Nevertheless, the statute’s legislative history fully supports the plain, textual requirement that the government review and release each and every “significant” FISC opinion, no matter when it was written. The House Judiciary Committee’s report on USA FREEDOM states that Section 402 was enacted to create “greater transparency of national security programs operated pursuant to FISA.” H. Rep. No. 114-109, pt. 1, at 2 (2015). Section 402 accomplishes this goal by requiring the Executive Branch “to conduct a declassification review of each decision, order, or opinion of the FISC or FISCR that includes a significant construction or interpretation of law.” Id. at pt. 1, 23 (emphasis added). Senators Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) adopted the House’s analysis of USA FREEDOM, including Section 402, when introducing the bill in the Senate. See 161 Cong. Rec. S3427 (daily ed. June 2, 2015) (“to prevent misinterpretations of Congress’s intent, [Senator Leahy and I] want to state clearly that we agree with the section-by-section analysis contained in House Report 114-109”) (statement of Sen. Lee). The chief drafter of USA FREEDOM, Rep. Jim Sensenbrenner (R-Wisc.), stated that Section 402 was written to bring “an end to secret laws” by requiring the declassification of “significant legal decisions.” 161 Cong. Rec. H2916 (daily ed. May 13, 2015).11 Statements from other sponsors and supporters of USA FREEDOM demonstrate that by including the word “each” in Section 402, Congress meant for the Executive Branch to declassify and release all significant opinions. House Judiciary Chairman Goodlatte stated that Section 402 “increases transparency by requiring declassification of all significant FISA Court opinions.” 161 Cong. Rec. H2914 (daily ed. May 13, 2015) (emphasis added). House Judiciary Committee Ranking Member John Conyers (D-Mich.), also an original sponsor of the bill, similarly stated that Section 402 “requires the government to declassify and publish all novel and significant opinions of the Foreign Intelligence Surveillance Court.” 161 Cong. Rec. H2915 (daily ed. May 13, 2015) (emphasis added). Additionally, Rep. Adam Schiff (D-Calif.), the ranking member of the House Permanent 11 Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, identified Rep. Sensenbrenner as “the chief sponsor of this legislation.” 161 Cong. Rec. H2916 (daily ed. May 13, 2015). Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 25 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 20 Select Committee on Intelligence said that Section 402 “increases transparency by requiring a declassification review of all significant FISA court opinions and by requiring the government to provide the public with detailed information about how they use these national security authorities.” 161 Cong. Rec. H2921 (daily ed. May 13, 2015) (emphasis added). Members of Congress sponsoring and supporting USA FREEDOM meant for Section 402’s declassification procedures to be applied to each and every significant FISC opinion. Section 402’s plain text indicates as much, and the legislative history merely reaffirms that the government has a statutory obligation to review and declassify all significant FISC opinions. C. Section 402 imposes a prospective declassification requirement that raises no retroactivity concerns. Because the text of Section 402 explicitly mandates the review and declassification of all significant FISC opinions, there is no question about whether Congress intended the provision to require the disclosure of FISC decisions issued before USA FREEDOM was passed, as the government has previously argued.12 Nevertheless, the government’s retroactivity arguments lack merit. To begin, no retroactivity analysis is necessary in the first place. The plain text of Section 402 directs that the government “shall conduct a declassification review” of significant FISC decisions. 50 U.S.C. § 1872(a) (emphasis added). The statute thus imposes a new, mandatory, and forward-looking transparency obligation on the government to make the body of “significant” FISC decisions public. A statute is “not made retroactive merely because it draws upon antecedent facts for its operation”; nor is a statute retroactive simply because it “unsettle[s]” expectations about past events. Landgraf v. USI Film Prods., 511 at 245, n. 24 U.S. 244 (1994). (internal citations and quotations omitted). As the Supreme Court recognized in Landgraf, a new law that changes zoning regulations 12 Although the DOJ has yet to fully raise the argument here, as described above, supra at 5, DOJ contends that Section 402’s declassification requirement, if interpreted to apply to opinions written before the enactment of USA FREEDOM, would have an impermissible retroactive effect. See Joint Case Management Statement at 3 (ECF No. 23); see also Memorandum in Opposition to Motion for Reconsideration, filed in EFF v. Dep’t of Justice, 14-cv-00760 (D.D.C.) (ECF No. 28) (Ex. C). Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 26 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 21 may upset the expectations of someone who previously purchased affected property, and a law banning gambling can harm a developer who had begun to build a casino. Id. But the fact that the law imposes new, prospective burdens or alters expectations going forward does not, by itself, mean the law has an impermissible retroactive effect. So too here: simply because significant FISC opinions were issued before USA FREEDOM’s enactment does not mean Section 402’s prospective obligation to declassify those opinions has a prohibited retroactive affect, even if it unsettles the government’s expectations about the secrecy of those opinions. Moreover, the government’s classification assertions are not the type of completed past events that raise retroactivity concerns. The presumption against retroactivity ensures that new legal consequences are not unfairly attached to completed events in ways that “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280. The issuance of an opinion, by an Article III court, and the government’s ongoing secrecy assertions concerning that opinion, hardly raise concerns about the government’s “rights,” “liability” or completed “transactions.” Ultimately, Section 402 is akin to any other statute that imposes new transparency requirements on the government, much like FOIA. FOIA was first passed in 1966 and requires federal agencies to make records public upon request—including requests for agency records that existed prior to FOIA’s passage. See, e.g., Halpern v. FBI, 181 F.3d 279, 285 (2d Cir. 1999) (seeking agency records from the 1930s). To EFF’s knowledge, the government has never argued that FOIA’s transparency regime is limited to records created after FOIA was passed; yet that is exactly what the government argues with respect to Section 402. Section 402, like the FOIA, applies without regard to the date the records were written. CONCLUSION This Court should not countenance the government’s ongoing attempts to avoid its statutory transparency obligations. For all the foregoing reasons, EFF respectfully urges the Court to grant its motion for partial summary judgment. Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 27 of 28 16-cv-02041-HSG PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. i 22 DATED: October 13, 2016 Respectfully submitted, /s/ Mark Rumold Mark Rumold ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION Case 3:16-cv-02041-HSG Document 32 Filed 10/13/16 Page 28 of 28 DECLARATION OF MARK RUMOLD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARK RUMOLD (SBN 279060) mark@eff.org NATHAN D. CARDOZO (SBN 259097) nate@eff.org AARON MACKEY (SBN 286647) amackey@eff.org ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ELECTRONIC FRONTIER FOUNDATION, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-02041-HSG DECLARATION OF MARK RUMOLD IN SUPPORT OF PLAINTIFF’S CROSS- MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITON TO DEFENDANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT Hon. Haywood S. Gilliam Jr. Hearing Date: December 15, 2016 Case 3:16-cv-02041-HSG Document 32-1 Filed 10/13/16 Page 1 of 7 16-cv-02041-HSG DECLARATION OF MARK RUMOLD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OF MARK RUMOLD 1. I am an attorney of record for Plaintiff Electronic Frontier Foundation in this matter. I am a member in good standing of the California State Bar and am admitted to practice in this Court. I have personal knowledge of the matters stated in this declaration. If called upon to do so, I am competent to testify to all matters set forth herein. 2. EFF is a nonprofit corporation established under the laws of the Commonwealth of Massachusetts with offices in San Francisco, California and Washington, D.C. EFF is a donor- supported membership organization that works to inform policymakers about civil liberties issues related to technology and to act as a defender of those liberties. 3. In support of its mission, EFF uses the Freedom of Information Act (FOIA) to obtain and disseminate information concerning the activities of federal agencies. Prior EFF FOIA Litigation Concerning FISC Opinions 4. Since 2011, as part of a broader effort to help bring decades of secret surveillance law to public light and to inform the public about the nature and use of the government’s surveillance authorities, EFF has used the Freedom of Information Act (“FOIA”) to obtain significant opinions of the Foreign Intelligence Surveillance Court (“FISC”). 5. In addition to this case, EFF has previously litigated three other cases arising from FOIA requests to the Department of Justice (“DOJ”) seeking disclosure of significant FISC opinions. See EFF v. Dep’t of Justice, 11-5221-YGR (N.D. Cal) (seeking release of “significant” FISC opinions concerning Section 215); EFF v. Dep’t of Justice, 11-0441-ABJ (D.D.C.) (seeking release of [Caption Redacted], 2012 WL 9189263); EFF v. Dep’t of Justice, 14-cv-00760-RMC (D.D.C.) (seeking release of multiple FISC opinions). I served as counsel for EFF in each of these cases. 6. Each case resulted in the disclosure of FISC opinions that enhanced the public’s understanding of the operation of the FISC; the nature and interpretation of federal surveillance law; and the scope of the government’s foreign intelligence surveillance authorities. Case 3:16-cv-02041-HSG Document 32-1 Filed 10/13/16 Page 2 of 7 16-cv-02041-HSG DECLARATION OF MARK RUMOLD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 7. In EFF v. Dep’t of Justice, 11-5221-YGR (N.D. Cal.), EFF sought disclosure of a broad category of records relating to the government’s use of Section 215 of the USA PATRIOT Act, the so-called “business records” provision of FISA—a provision, it was later revealed, the NSA and FBI used to collect the call records of millions of Americans in bulk. 8. At the time the suit was filed, however, the government had not confirmed that Section 215 was being used for that purpose. Rather, the government had only disclosed that Section 215 was being used to support a “sensitive collection program.” 9. EFF’s initial FOIA request sought all records related to the government’s interpretation of Section 215—including any FISC opinions interpreting the provision. However, in an effort to make the litigation more manageable, EFF and DOJ sought to narrow the scope of the records in dispute. 10. To that end, EFF sought to differentiate between records—including FISC opinions—in which Section 215 was used in a “garden variety” manner (e.g., to obtain business records in the possession of a third party related to a specific foreign intelligence target); and, on the other hand, those records interpreting Section 215—including FISC opinions—that were used to support the government’s “sensitive collection program.” 11. EFF and DOJ agreed to narrow the scope of the litigation to records—including FISC opinions—containing “significant legal analysis or interpretation of Section 215.” 12. DOJ ultimately identified approximately a dozen FISC opinions responsive to that request. Some of those opinions were released; however DOJ continued to withhold, in full, at least five FISC opinions containing “significant legal analysis or interpretation of Section 215.” The court ultimately upheld the government’s withholding of those FISC opinions and, to my knowledge, the opinions have never been disclosed. 13. In a later FOIA suit, EFF v. Dep’t of Justice, 14-cv-00760-RMC (D.D.C.), EFF sought an additional set of specific FISC opinions. Following the government’s release of a number of the requested opinions, the parties limited further litigation to a single opinion. Case 3:16-cv-02041-HSG Document 32-1 Filed 10/13/16 Page 3 of 7 16-cv-02041-HSG DECLARATION OF MARK RUMOLD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 14. The parties cross-moved for summary judgment. While the cross-motions were pending, USA FREEDOM was enacted into law. Because cross-motions had already been filed, the parties never addressed the effect of Section 402 in their briefing,1 and the court ultimately granted summary judgment in the government’s favor—allowing the government to withhold, in full, the single FISC opinion at issue. 15. EFF eventually sought reconsideration of the court’s decision in light of Section 402’s new declassification requirement. In response, the government argued—for the first time— that Section 402 only applies to FISC opinions authored after USA FREEDOM’s effective date— June 2, 2015. 16. In light of the government’s unexpected argument, and in an effort to avoid having the court address the issue in such an unusual posture, EFF voluntarily dismissed its motion for reconsideration. 17. Shortly thereafter, EFF filed the March 7 FOIA request at issue in this case. Procedural History of this Case 18. On March 7, 2016, EFF sent a FOIA request (the “Request”) to the Department of Justice-National Security Division (DOJ-NSD) seeking: “Any ‘decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review’ . . . ‘that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term “specific selection term”’ USA FREEDOM Act, Pub. L. 114-23 § 402(a) (2015), codified at 50 U.S.C. § 1872(a).” In 1 Additionally, a member of EFF’s staff who had engaged executive branch officials about Section 402’s declassification requirements mistakenly believed, based on those conversations, that the executive branch would begin compliance with Section 402’s requirements at the end of a 180- day transition period Congress had created for various other provisions of USA FREEDOM. Based on that mistaken belief, and assuming the opinion at issue in the case would be declassified and released at the end of that transition period, EFF did not raise Section 402’s declassification requirements at an earlier stage in the litigation. Case 3:16-cv-02041-HSG Document 32-1 Filed 10/13/16 Page 4 of 7 16-cv-02041-HSG DECLARATION OF MARK RUMOLD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 light of the government’s position in the earlier litigation, EFF divided the Request into two time periods: (1) 1978 to June 1, 2015 and (2) June 2, 2015 to present. 19. On March 25, 2016, I spoke with Kevin Tiernan, a DOJ-NSD employee in the Office of Law and Policy, Records and FOIA, by telephone. In that call, I indicated EFF’s willingness to offer suggestions for prioritizing certain kinds of significant FISC opinions for DOJ- NSD to declassify and release in response to EFF’s FOIA request. 20. I followed up this call with an email to Mr. Tiernan on April 5, 2016, offering suggestions I believed would provide a useful starting place for processing the request, including prioritization based on: a. opinions that authorize particularly novel surveillance techniques or actions, or techniques that affect significant numbers of people; b. opinions addressing violations of laws or court orders; c. opinions that established new rules, or authoritatively construed laws, and that remain in current use by the FISC and IC; d. opinions that, within NSD or the IC, are considered foundational or otherwise critical to understanding government national security surveillance authorities; e. recently issued opinions (e.g., those issued after 2001). 21. As far as I am aware, DOJ-NSD never responded to our request after these communications. 22. After EFF filed suit, I participated in several discussions with counsel for DOJ in an effort to narrow the issues before this Court. 23. On or about June 16, 2016, I discussed the Request with opposing counsel in a telephone call. On that call, I understood the agency’s position on the Request to be that it was an improper request and that they would not process it. 24. In an effort to resolve that area of dispute, I discussed EFF’s earlier suggested criteria for prioritizing the declassification of FISC opinions that I had provided with Mr. Tiernan, Case 3:16-cv-02041-HSG Document 32-1 Filed 10/13/16 Page 5 of 7 16-cv-02041-HSG DECLARATION OF MARK RUMOLD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 and I offered to narrow EFF’s Request to those categories of records, if it would resolve the government’s objection. 25. I also stated EFF’s willingness to allow DOJ-NSD an extended schedule for the production and release of significant FISC opinions subject to the narrowed request. 26. Subsequently, after email communications between counsel, I understand DOJ’s position to be that, even if EFF narrowed its Request to the categories described in my April 5 email, the agency would still take the position that it was an improper request. Exhibits 27. Attached hereto as Exhibit A is a true and correct copy of: EFF’s March 7 FOIA request. 28. Attached hereto as Exhibit B is a true and correct copy of: a letter and Comments of the Judiciary Regarding the Foreign Intelligence Surveillance Act (Jan. 10, 2014), submitted by the Hon. John D. Bates, Director of the Administrative Office of the United States Courts, to Sen. Grassley, Ranking Member, Senate Committee on the Judiciary, dated January 13, 2014. 29. Attached hereto as Exhibit C is a true and correct copy of: the Memorandum in Opposition to Motion for Reconsideration, filed in EFF v. Dep’t of Justice, 14-cv-00760-RMC (D.D.C.) (ECF No. 28). 30. Attached hereto as Exhibit D is a true and correct copy of: a letter from Sens. Ron Wyden and Mark Udall to Attorney General Eric Holder, dated March 15, 2012. 31. Attached hereto as Exhibit E is a true and correct copy of: a letter from the Hon. Reggie B. Walton, then-Presiding Judge of the Foreign Intelligence Surveillance Court, to Sen. Diane Feinstein, dated March 27, 2013. 32. Attached hereto as Exhibit F is a true and correct copy of: a letter from the Department of Justice to the Hon. Yvonne Gonzalez Rogers, filed in EFF v. DOJ, No. 11-cv-5221- YGR (N.D. Cal.) (ECF No. 32). Case 3:16-cv-02041-HSG Document 32-1 Filed 10/13/16 Page 6 of 7 16-cv-02041-HSG DECLARATION OF MARK RUMOLD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 33. Attached hereto as Exhibit G is a true and correct copy of: Order re: Holding Cross- Motions for Summary Judgment in Abeyance, EFF v. Dep’t of Justice, 11-5221-YGR (N.D. Cal. Jul. 19, 2013) (ECF No. 62). I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Signed this 13th day of October, 2016. /s/ Mark Rumold Mark Rumold Case 3:16-cv-02041-HSG Document 32-1 Filed 10/13/16 Page 7 of 7 Exhibit A Case 3:16-cv-02041-HSG Document 32-2 Filed 10/13/16 Page 1 of 5 March 7, 2016 BY EMAIL — nsdfoia@usdoj.gov Arnetta Mallory FOIA Initiatives Coordinator National Security Division Department of Justice Room 6150, 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 RE: Freedom of Information Act Request Dear Ms. Mallory: This letter constitutes a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and is submitted to the Department of Justice (DOJ), National Security Division (NSD) on behalf of the Electronic Frontier Foundation (EFF). Through this request, EFF seeks records of the Foreign Intelligence Surveillance Court (FISC). To that end, EFF requests: • Any “decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)),” issued from 1978 to June 1, 2015, “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term.’” USA FREEDOM Act, Pub. L. 114-23, § 402(a) (2015), codified at 50 U.S.C. § 1872(a). • Any “decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)),” issued from June 2, 2015 to present, “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term.’” USA FREEDOM Act, Pub. L. 114-23, § 402(a) (2015), codified at 50 U.S.C. § 1872(a). EFF makes this request as part of its Transparency Project, which works to obtain government records and make those records widely available to the public. Disclosure of the records sought by EFF is required under both FOIA and the recently passed USA FREEDOM Act. USA FREEDOM requires release of significant FISC decisions, orders, or opinions, instructing that the Director of National Intelligence, in consultation with the Attorney General shall make those documents “publicly available to the greatest extent Case 3:16-cv-02041-SK Document 12-2 Filed 05/23/16 Page 1 of 4Case 3:16-cv-02041-HSG Document 32-2 Filed 10/13/16 Page 2 of 5 Significant FISC Opinions FOIA Page 2 of 4 practicable.” 50 U.S.C. § 1872(a). This includes releasing the decisions, orders, or opinions “in redacted form.” 50 U.S.C. § 1872(b). USA FREEDOM further requires that, in the event that the government determines it must not disclose an order “to protect national security,” the Attorney General, in consultation with the Director of National Intelligence, must make an unclassified statement summarizing the decision, order, or opinion. Further, FISC opinions are properly subject to FOIA, as the FISC’s rules do not bar such disclosure. Electronic Frontier Foundation v. U.S. Dept. of Justice, No. 12-01441 at 12- 24 (D.D.C. Sept. 30, 2015) (recognizing that the FISC had previously ruled that Rule 62 did not bar disclosure and thus, DOJ was required to release all non-exempt portions of the opinion under FOIA). EFF’s FOIA suit “ensured that the Opinion would in fact be disclosed to the public . . . and that every reasonably-segregable, non-exempt portion of the Opinion would be released.” Id. at 25. Request for News Media Fee Status EFF asks that it not be charged search or review fees for this request because EFF qualifies as a representative of the news media pursuant to the FOIA and 28 C.F.R. § 16.10(b)(6). In requesting this classification, we note that the Department of Homeland Security and National Security Agency, among other agencies, have recognized that EFF qualifies as a “news media” requester, based upon the publication activities set forth below. Further, the U.S. Court of Appeals for the D.C. Circuit has stressed that “different agencies [must not] adopt inconsistent interpretations of the FOIA.” Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C. Cir. 2001), quoting Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1287 (D.C. Cir. 1983). EFF is a nonprofit public interest organization dedicated to “defending civil liberties in the digital world.”1 One of EFF’s primary objectives is “to educate the general public and foster discussion and public policy analysis regarding the relationship between technology and society.”2 To accomplish this goal, EFF routinely and systematically disseminates information in several ways. First, EFF maintains a frequently visited web site, https://www.eff.org, that reports the latest developments and contains in-depth information about a variety of civil liberties and intellectual property issues. Also, EFF has regularly published an online newsletter, the EFFector, since 1990. The EFFector currently has more than 280,000 subscribers. A complete archive of past EFFectors is available at https://www.eff.org/effector/. Furthermore, EFF publishes a blog, Deeplinks (https://www.eff.org/deeplinks/), that highlights the latest news from around the Internet. 1 https://www.eff.org/about. 2 Guidestar Basic Report, Electronic Frontier Foundation, https://www.guidestar.org/organizations/04-3091431/electronic-frontier-foundation.aspx (last visited Oct. 6, 2015). Case 3:16-cv-02041-SK Document 12-2 Filed 05/23/16 Page 2 of 4Case 3:16-cv-02041-HSG Document 32-2 Filed 10/13/16 Page 3 of 5 Significant FISC Opinions FOIA Page 3 of 4 In addition to reporting hi-tech developments, EFF staff members have presented research and in-depth analysis on technology issues in roughly 40 white papers published since 2002. These papers, available at https://www.eff.org/wp/, provide information and commentary on such diverse issues as electronic voting, free speech, privacy and intellectual property. EFF has also published several books to educate the public about technology and civil liberties issues. Everybody’s Guide to the Internet (MIT Press 1994), first published electronically as The Big Dummy’s Guide to the Internet in 1993, was translated into several languages, and is still sold by Powell’s Books (http://www.powells.com). EFF also produced Protecting Yourself Online: The Definitive Resource on Safety, Freedom & Privacy in Cyberspace (HarperEdge 1998), a “comprehensive guide to self-protection in the electronic frontier,” which can be purchased via Amazon.com (http://www.amazon.com). Finally, Cracking DES: Secrets of Encryption Research, Wiretap Politics & Chip Design (O’Reilly 1998) revealed technical details on encryption security to the public. The book is available online at http://cryptome.org/cracking -des.htm and for sale at Amazon.com. Request for a Public Interest Fee Waiver EFF is entitled to a waiver of duplication fees because disclosure of the requested information is in the public interest within the meaning of 5 U.S.C. § 552(a)(4)(a)(iii) and 28 C.F.R. § 16.10(k)(1). To determine whether a request meets this standard, the agency determines whether “[d]isclosure of the requested information. . . is likely to contribute significantly to public understanding of the operations or activities of the government,” 28 C.F.R. § 16.11(k)(1)(i), and whether such disclosure “is not primarily in the commercial interest of the requester.” 28 C.F.R. § 16.11(k)(1)(ii). This request satisfies these criteria. First, any FISC orders, decisions, or opinions are unquestionably “the operations or activities of the government.” 28 C.F.R. § 16.11(k)(1)(i). Second, disclosure of the requested information will contribute significantly to a public understanding of government operations or activities because the public will gain new insight into the FISC. Id. EFF has requested information that will shed light on the legal precedents established by the FISC that are then relied upon in future applications by the DOJ and orders and opinions written by the FISC. There is legitimate public interest in understanding the contours of FISC’s caselaw, which have for too long been shrouded in secrecy. EFF will make the information it obtains in this request available to the public and the media through its web site and newsletter, which highlight developments concerning privacy and civil liberties issues, and/or other channels discussed more fully above. Furthermore, a fee waiver is appropriate here because EFF has no commercial interest in the disclosure of the requested records. 28 C.F.R. § 16.11(k)(1)(ii). EFF is a 501(c)(3) nonprofit organization, and will derive no commercial benefit from the information Case 3:16-cv-02041-SK Document 12-2 Filed 05/23/16 Page 3 of 4Case 3:16-cv-02041-HSG Document 32-2 Filed 10/13/16 Page 4 of 5 Significant FISC Opinions FOIA Page 4 of 4 requested here. Thank you for your consideration of this request. If you have any questions or concerns, please do not hesitate to contact Aaron Mackey at (415) 436-9333 ext. 167. As the FOIA provides, we will anticipate a determination on this request within 20 calendar days. We certify that, to the best of our knowledge and belief, all information within this request is true and correct. Sincerely, Mark Rumold David Sobel Nate Cardozo Aaron Mackey Electronic Frontier Foundation Case 3:16-cv-02041-SK Document 12-2 Filed 05/23/16 Page 4 of 4Case 3:16-cv-02041-HSG Document 32-2 Filed 10/13/16 Page 5 of 5 Exhibit B Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 1 of 19 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS HONORAl3LE JOJ!N D . GATES Director Honorable Charles E. Grassley Ranking Member Committee on the Judiciary United States Senate Washington, DC 20510 Dear Senator Grassley: WASHINGTON, D.C. 20544 January 13, 2014 To better address the continuing interest from several Congressional committees in the views of the Judiciary regarding potential changes to foreign intelligence surveillance law and practice, I am writing to provide the following perspectives on certain proposals currently under consideration. Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conforence of the United States, for which I serve as Secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not at this time been engaged to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration of the federal courts and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Swveillance Act (FISA). In considering such matters, l benefit from having served as Presiding Judge of the Foreign Intelligence Survei ll ance Court (flSC). Enclosed is a docwnent setting forth the Judiciary's comments concerning certain potential changes to Fl SA and proceedings before the FISC and the Foreign Intelligence Su1vcillance Court of Review. In prcpari ng this document, I have consulted with the current Presiding Judges of the FISC and the Court of Review, as well as with other judges who serve or have served on those courts. For the sake of convenience, throughout the enclosed document (and in the summary below) I use the tenns "we" and "our" to describe the Judiciary's institutional perspectives. A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 2 of 19 I fonorable Charles E. Grassley Page2 Our comments focus on the operational impact on the Courts from certain proposed changes, but we do not express views on the policy choices that the political branches are considering. We arc hopeful, of course, that any changes will both enhance our national secmity and provide appropriate respect and protection for privacy and civil-liberties interests. Achieving that goal undoubtedly will require great attention to the details of any adjustments that are undertaken. For example, it may not be important whether an outside participant in certain matters before the Courts is labeled an amicus curiae or public advocate; what matters is the specific structure and role of such a participant. The following is a summary of our key comments: • It is imperative that any significant increase in workload for the Coutts be accompanied by a commensurate increase in resources. • Some proposed changes would profoundly increase the Cou1ts' workload. Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts' ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others arc adequately protected. • The participation of a privacy advocate is u1mecessary-and could prove counterproductive-in the vast majority of FCSA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specified target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the-mill PISA matters would substantially hamper the work of the Courts without providing any countervailing benefit in terms of privacy protection or otherwise~ indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them. • In those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work. An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a standing advocate with independent authority to intervene at will could actually be counterproductive. Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 3 of 19 Honorable Charles E. Grassley Page 3 • Drastically expanding the FISC's caseload by assigning to it in excess of 20,000 administrative subpoena-type cases (i.e., NSLs) per year - even with a corresponding injection of resources and personnel - would fundamentally transform the nature of lhe FISC to the detriment of its CWTent responsibilities. • It is impo1tant that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts. • In many cases, public disclosure of Court decisions is not likely to enhance the public' s understanding of PISA im.pJcrnentation if the discussion of classified information within those opinions is withlleld. Releasing freestanding summaries of Court opinions is likely to promote confusion and misunderstanding. • Care should be taken not to place the Courts in an "oversight" role that exceeds their constitutional responsibility to decide ca<>es and controversies. Thank you for your previously expressed interest in the perspectives of the Judkiary on these matters. Although these comments arc not intended as expressions of support or opposition to particular introduced bills, J hope they are helpful to Congress in its deliberations on potential legislation. We have also provided these comments to the Administration. If we can be of further assistance to you, please do not hesitate to contact me at 202-502-3000 or our Office of Legislative Affairs at 202-502-1700. Enclosure Identical letter sent to: Sincerely, J-AvJJ.J- John D. Bates Director Honorable Patrick J. Leahy I lonorable Dianne Feinstein Honorable Saxby Chambliss Honorable Bob Goodlatte Honorable John Conyers, Jr. Honorable Mike Rogers Honorable C.A. Dutch Ruppersberger Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 4 of 19 Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act January l 0, 2014 These comments on behalf of the Judiciary regarding proposals with respect to the Foreign Intelligence Smveillance Act of 1978 (FISA), codified as amended at 50 U.S.C. §§ 1801~1885c, were prepared by the Honorable John D. Bates, Director of the Administrative Office of the United States Courts, in consultation with the current Presiding Judges of the Foreign Intelligence Smveillance Cowt (FlSC) and the Foreign Intelligence Surveillance Court of Review (Court of Review), as well as with other judges who serve or have served on those courts. It is the responsibility of the political branches to decide, within the bounds of the Constitution, what legal requirements and processes or substantive limitations should apply to intelligence gathering operations. For that reason, the focus of these comments is not to provide policy advice on issues of national security, foreign relations or privacy. Rather, the principal objective of these comments is to explain how certain proposals for substantive or procedural changes to FISA would significantly affect the operations of the FISC and the Cow1 of Review (collectively, "the Courts"). These comments arc presented in an effort to enhance the political branches' ability to assess whether, on balance, it would be wise to adopt those proposals. This discussion also notes where we perceive that certain proposals may implicate serious constitutional concerns, although detailed analysis of the constitutional issues is precluded where those issues could forcseeably come before one of the Courts in the event that a proposal is adopted. The following is a summary of om key conunents: • It is imperative that any significant increase in workload for the Comts be accompanied by a commensurate increase in resources. • Some proposed changes would profoundly increase the Courts' workload. Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Cowts' ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others are adequately protected. • The participation of a privacy advocate is mmecessary and could prove counterproductive in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specific target. Given the natme of Fl SA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the-mill PISA matters would substantially hamper the work of the Comts Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 5 of 19 without providing any commensurate benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them. • In those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work. An advocate appointed at the discretion of the Courts is likely to be helpful , whereas a standing advocate with independent authority to intervene at will could actually be countcrprod ucti ve. • Drastically expanding the FIS C's caseload by assigning to it in excess of 20,000 administrative subpoena-type cases per year - even with a corresponding injection of resources and personnel - would fundamentally transform the natme of the FISC to the detriment of its current responsibilities. • It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select quali1ied judges for those Courts. • In many cases, public disclosure of Court decisions is not likely to enhance the public's understanding of PISA implementation if the discussion of classified information within those opinions is withheld. Releasing freestanding summaries of Court opinions is likely to promote confusion and misunderstanding. • Care should be taken not to place the Courts in an "oversight" role that exceeds their constitutional responsibility to decide cases and controversies. The adoption of many of the measures discussed herein would impose substantial new responsibilities on the FISC and ultimately the Court of Review. Por the Courts to meet such new responsibilities effectively and with the dispatch often required by national security imperatives, they would need to receive commensurate augmentation of resources. Depending on what exactly is enacted, the augmentation may require increased legal or administrative staff, additional judges or devotion of more of the current judges' time to the work of the Courts, appointment of magistrate judges to work on the FISC, and enhanced secure spaces and communications facilities. The provision of some of these resources could well come at the expense of the work of judges in their home districts and circuits, thereby negatively affecting the operations of their respective federal court-;. We also wish to stress, however, that even significantly increasing resources will not guarantee that all proposed changes will be successful. Giving new responsibilities to the Courts, while also establishing more elaborate procedures for the Courts to follow, may actually detract from their ability to identify and resolve the issues that are most critical to national security and privacy interests. Thoughtful assessment of the advantages and disadvantages of proposed changes is therefore crucial. 2 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 6 of 19 ln our view, some proposals that have been made - especiaHy those that would create a full-time independent advocate to oppose a wide range of government applications before the Courts - present substantial difficulties that would not be resolved by simply increasing the Courts' resources. We anticipate that this form of advocate patticipation would not only be cumbersome and resource-intensive, but also would impair the FISC's ability to receive relevant information, thereby degrading the quality of its decisionmaking. We tum first to this question. Proposals.for a Special Advocate to Appear Before the Courts The vast majority of FISC matters are ex parte requests by the government for search warrants, electronic surveillance orders, production of records or pen register/trap-and-trace orders. Every day, United States district courts receive dozens of such requests in criminal investigations and rule on them in an ex parte manner, with no party present except the government. The FISC process is very similar to the one employed by the district courts in these criminal matters. Consistent with this well-established procedure for entertaining requests of this nature, FISA does not ctUTently provide a means for the FJSC to solicit the assistance of non- governmental entities in considering issues presented by such requests. Moreover, except in the rare situation where substantial information about an ongoing case has been declassified, 1 non- governmental individuals and entities now lack the information needed to seek leave to participate as amici curiae and to assist the FISC or Court of Review in resolving ditlicult legal or technological issues. An effo11 to address these narrow concerns would not be objectionable, as long as it does not burden Cowt operations in the large majority of cases where there is no need for a quasi-adversarial process. Recent public debate has focused on matters such as NSA's bulk collection of call detail records under Section 501 of FlSA, codified at 50 U.S.C. § 1861, and the government's acquisition of information pursuant to Section 702 of FISA, codified at 50 U.S.C. § 188 la. Such matters, however, comprise only a small portion of the FISC's workload, measured either by number of cases or allocation of time. In all but a small number of matters, the FISC's role is to apply a probable cause or other factual standard to target-specific sets of facts and to assess whether the government's proposed minimization procedures are adequate under the particular circumstances. The authorizations sought in the large majority of cases do not implicate the privacy interests of many U.S. persons because the collections at issue arc narrowly targeted at particular individuals or entities that have been found to satisfy the applicable legal standards. Nor, except in a small handful of cases, do such matters present novel or complex legal or technical issues. Accordingly, as the President's Review Group on Intelligence and 1 See In re Application of the Federal Bureau o.llnvestigationfor an Order Requiring the Production o,(Tangible Things, Mcmorandwn Opinion and Order, Docket No. BR 13-158 (FISA Ct. Dec. 18, 2013 ), where the FISC authorized a non-governmental advocacy group to file an amicus brief addressing the bulk telephony metadata collection program. 3 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 7 of 19 Commw1ications Technologies ("Review Group") has recognized,2 most FlSA cases are similar to law enforcement applications for search warrants and Title lJ I wiretaps, which also are considered ex parte. Providing for an advocate in the large majority of cases, then, would be superfluous and would create the unusual situation in our judicial system of affording, at this stage of the proceedings, greater procedural protections for suspected foreign agents and international terrorists than for ordinary U.S. citizens in criminal investigations. To be sure, genuinely adversarial processes, such as criminal or civil trials, provide an excellent means of testing a party's factual contentions. But introducing an advocate into the fISA process would not produce that result. Advocates of the type put forward in various proposals to change FISA would not actually represent a proposed target of surveillance or any other particular client.3 For operational security reasons, such an advocate would not be able to conduct an independent factual investigation, e.g., by interviewing the target or the target's associates. An advocate therefore would be of little, if any, assistance in evaluating the facts of particular cases which, as noted above, is the heart of the fISC's consideration in the large majority of cases. Indeed, we are concerned that proposals to create a full-time advocate with the discretion to participate, or seek leave to participate, in any or all cases would impair rather than improve the FISC's ability to receive information and rule on applications in an effective and timely manner. Enhanced resources would help the FISC overcome these impairments, but only to a limited extent. In order to explain the reasons for these concerns, it is helpful to summarize how the PISC operates. 2 When the FISC was created, it was assumed that it would resolve routine and individualized questions of fact, akin to those involved when the government seeks a search warrant. It was not anticipated that the FISC would address the kinds of questions that benefit from, or require, an adversary presentation[;] ... however, the FJSC is sometimes presented with novel and complex issues of law. The resolution of those issues would benefit from an adversary proceeding. Liberty and Security in a Changing World: Report and Recommendations (?(the PresidenL 's Review Group on Intelligence and Communications Technologies (Dec. 12, 2013) ("Review Group Report" ) at 203 (emphasis added). The Review Group further acknowledged that "[blecause the nwnber of flSA applications that raise novel or contentious issues is probably small, the Advocate might find herself with relatively little to do." Id. at 204. 3 See, e.g., Review Group Report at 200 (recommending creation of a " Public Interest Advocate to represent privacy and civil liberties interests" before the FISC). 4 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 8 of 19 Judges appointed to the FISC retain all their regular responsibilities for civil and criminal cases assigned to them in their respective districts. Each week, one of those judges is on duty for the FISC in Washington, D.C. Eight of the eleven judges do not reside in the Washington, D.C. area and must travel from their home districts in order to serve as the duty judge. The duty week assigrunent rotates among the judges, so that each judge takes one week every fow months away from district court responsibilities to do FlSC work. This rotation system avoids serious disruption to the work of any one district when a judge serves on the FISC. Because much of the material reviewed by the FISC is highly classified, its work generally must be performed in a Sensitive Compartmented Information Facility (SCif). FlSC quarters in Washington, D.C., including office space and a court room (which are also shared by the Cout1 of Review), are within such a SCJ F. In contrast, a lack of secure communication and storage facilities makes it very difficult for eight of the eleven judges to review FISC pleadings or communicate about FISC matters when they are in their home districts. The large majority of FISC cases are handled by the duty judge within one week while in Washington (though preparatory work by Court staff often commences during the prior week). More complex or time-consuming matters are sometimes handled by judges outside of the duty-week rotation, at the discretion of the Presiding Judge. FISC judges currently have substantial flexibility in deciding how best to receive from the government infonnation they consider relevant to a particular case. Formal hearings are conducted when necessary. On the other hand, when deemed appropriate by a judge (for example, in a time-sensitive matter), the FISC may request or receive information from the applicant informally tluough its legal staff This range of options enables the fl SC duty judge to routinely entertain 40 or more applications in a typical week. In keeping with the ex parte nature of the proceedings, the government generally responds to these inquiries with a high degree of candor; indeed, the government routinely discloses in an application information that is detrimental to its case. This candor is also essential to the FISC's ability to discharge its responsi bi Ii ties. Introducing an advocate into a substantial number ofFISC proceedings would likely slow down and complicate the Court's information-gathering and consideration of these fact- intensive cases. Under current FISC rules and practice, in non-emergency cases the government is required to submit proposed applications to the FISC within seven days of when it seeks to have the final application ruled upon. In order for an independent advocate to have a meaningful opportunity to review an application, decide whether he wishes to participate in its consideration, and prepare and submit views to the FISC, and for the FISC to consider the advocate's submission together with the application, the government would have to submit a proposed application substantially earlier than the present seven-day period. That requirement would likely conflict with the government's interest and the public's interest to obtain expedited consideration of an application or of successive applications when necessary to respond to a rapidly evolving threat. Moreover, even relatively routine national security investigations often involve changing facts, such that proposed applications would frequently require change or 5 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 9 of 19 supplementation. This process of keeping the FISC and the advocate apprised of changing circumstances over a longer period oftime would be cwnbersome and time-consuming. This prolonged period of consideration in routine cases would also complicate the assignment of matters to FISC judges because such proceedings would likely extend beyond a judge's normal duty week. The more cases in which an advocate is involved, the more likely it would be that the Court would have to modify its current practice of having each FISC judge sit for one week at a time. A different approach, requiring a judge to engage with FISC matters for longer periods, is likely to require more time away from judges' home districts, to the detriment of their regular district court work. The difficulties of such a process would be exacerbated by the need to interact on equal terms with the applicant and the advocate. In order for the FISC to abide by the procedural and ethical requirements that apply in adversarial proceedings, and for the advocate to appear on equal footing with the applicant, the FISC would have to ensure that the advocate was involved in all such interactions in any case in which the advocate may participate (or, if the advocate must seek leave to participate from the fISC, perhaps only in those cases where such a request is pending or has been granted). We expect that the logistical challenges of administering such a three-way process for more than a handful of cases would be considerable. And even if it were appropriate under the terms of a specific enactment to limit the involvement of the advocate in such interactions to cases where the advocate has sought or received leave to participate, the FISC may well need to ensure that the advocate, upon entering a matter, becomes fully apprised of any interactions that have already occurred.4 At an institutional level, there are difficult policy, and potentially constitutional,5 questions regarding how an advocate would fit within existing governmental structures. The Review Group recognized that where to house the advocate presents a "difficult issue" and came to no particular reconunendation on this point. See Review Group Report at 204-05. Some proposals for an advocate may also compromise judicial indepcndcnce.6 4 If the advocate and an applicant have a dispute about what information the advocate should receive, then the fISC may be required to resolve collateral, discovery-type issues, which would place new forms of demands on the resources of the Court and create the potential for delays that would impact national security. 5 See Congressional Research Service, Introducing a Public Advocate inlo the Foreign Intelligence Surveillance Act's Courls: Select Legal issues (Oct. 25, 2013) at 8-14 (discussing issues under the Appointments Clause). 6 Some proposals would grant the advocate broad access, not only to government pleadings and Court decisions, but also to Court material relevant to those decisions. Such broad access could be understood to encompass draft decisions and memoranda from legal staff to a (continued ... ) 6 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 10 of 19 In short, the burdens and complications arising from a full-time advocate who could elect to participate (or seek leave to participate) in fact-intensive, run-of-the-mill cases, weighed against the negligible benefits from involving an independent advocate in consideration of those cases, strongly counsel against creation of such a position. Perhaps most troubling, however, is our concern that providing an institutional opponent to PISA applications would alter the process in other ways that would be detrimental to the FISC' s timely receipt of full and accurate information. As noted above, the current process benefits from the government's taking on - and generally abiding by - a heightened duty of candor to the Court. Providing for an adversarial process in rnn-of-the-mill, fact-driven cases may erode this norm of governmental behavior, thereby impeding the Court's receipt ofreJcvant facts. (As noted above, the advocate would rarely, if ever, serve as a separate source of factual information.) Instead, intelligence agencies may become reluctant to voluntarily provide to the Court highly sensitive information, or information detrimental to a case, because doing so would also disclose that information to a permanent bureaucratic adversary. This reluctance could diminish the Court's ability to receive relevant information, thereby undermining the quality of its decisions. In some cases, that reluctance could result in those agencies• opting not to pursue potentially valuable intelligence-gathering operations governed by FISA in order to protect extremely sensitive intelligence methods or targets rrom disclosure to that adversary.7 6( ... continued) judge. Such materials are privileged conununications under both ethical canons and separation- of-powers principles and their disclosure to the advocate would seriously infringe on the independence of the judges' decisiorunaking. 7 Some might suggest that an advocate who can engage across-the-board in FISA matters would enhance public perception that the process is fair and takes into account privacy, as well as national security, interests. Recent disclosures by the FISC and the Executive Branch have done much to dispel the misperception that the FISC "rubber stamps» government requests. See, e.g., Review Group Report at 202 ("As illustrated by the [recently declassified] section 215 and section 702 non-compliance incidents .. ., the FlSC takes seriously its responsibility to hold the govcrrunent responsible for its errors."); Letter of the Honorable Reggie H. Walton, FISC Presiding Judge, to the Honorable Patrick J. Leahy, Chairman, Senate Committee on the Judiciaty (Oct. 11, 2013) ("During the three month period form July 1, 2013 through September 30, 2013, we have observed that 24.4% of matters submitted [to the FISC] ultimately involved substantive changes to the info1mation provided by the government or to the authorities granted as a result of Court inquiry or action."). Moreover, public action such as enhancing transparency and modifying the substantive rules and standards governing intelligence collection (or reaffirming current rules and standards after public examination and debate) would be more likely to improve confidence in the FISA process than would introducing a new layer of secret bureaucracy. 7 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 11 of 19 A mechanism that facilitates the involvement of an advocate in those particular cases that, in the Court's judgment, would benefit from an advocate' s participation would largely avoid iliese difficulties. Contrary to the suggestion of the Review Group, see Review Group Report at 204, we believe that j udges are fully capable of determining which matters would benefit from such participation and how best to structure participation within a particular case.8 If an advocatc's participation is at the discretion of the Court, however, placing statutory limitations on the types of cases in which that participation is available may prevent the Court from bcncfitting from the advocate's contributions in an appropriate case. For example, limiting an advocate's participation to cases presenting a novel or significant inteipretation of the law could prevent the Court from taking advantage of an advocatc's participation in a case that presented challenging teclmological, rather than legal, issues. Such limitations might also raise constitutional questions. See Congressional Research Service, Requiring a Federal Court to Hear from an Amicus Curiae (Dec. 9, 2013) at 4. Proposals that would empower a permanent advocate to independently seek reconsideration of FISC decisions, or to appeal them to the Court of Review, would pose difficulties in addition to those summarized above. As others have noted, substantial standing and other constitutional issues would be presented if the advocate sought to challenge an authorization granted by ilie FISC. See Congressional Research Service, Introducing a Public Advocate into /he Foreign Intelligence Surveillance Act's Courts: Select Legal lr;sues at 21-26 (Oct. 25, 2013). As a practical matter, a full-time advocate empowered to seek reconsideration in the FlSC and to appeal decisions to the Court of Review would significantly impact the operations of both Courts. An increased number of reconsideration requests would pose scheduling and logistical challenges in the FIS C's current mode of operations. FISC judges frequently rnle on cases toward the end of their duty week, so in many cases it is highly unlikely that an advocat.e's request for reconsideration would even be filed before a sitting judge from a district outside of the District of Columbia area returned to his or her district. As a result, judges would need to arrange their regular district cowt schedules to allow for an additional, return trip to Washington in the event a request for reconsideration were filed. If requests for reconsideration became sufficiently common, the FISC would likely need to reexamine its current one-week rotation schedule. Either approach would negatively affect judges' ability to perform ilieir district court duties. In the Court of Review, any meaningful increase in the number of appeals would transform the operat.ions of that Court, which heretofore has not had a workload requiring full- time operation. Because Court of Review judges also serve full-time on district courts or courts of appeal, a significant increase in the number of FISA appeals might necessitate more judges being appointed to the Court of Review. And because the Court of Review currently relies on Fl SC staff and uses the FIS C's secure space to conduct its work, a significant increase in its R An approach in which the FISC could appoint an advocate in a particular case where the advocate's participation would be helpful would also enable the Court to select an advocate who does not present recusal issues for the judge handling the case. 8 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 12 of 19 workload would likely require the Court to hire its own staff and construct or acquire its own secure space. £.[feet o.lCertain Substantive Proposals on Court Operations The following substantive proposals would impose significant new demands on the FISC and ultimately the Court of Review. ChanKes to National Security Letter Practices: The Federal Bureau oflnvestigation (FBI) uses national security letters (NSLs), which are akin to administrative subpoenas, mainly to obtain subscriber information, see Review Group Report at 90, although other types of records may also be obtained, see, e.g., 15 U.S.C. § 1681u (consumer report records). An NSL-related recommendation of the Review Group could increase the FISCs annual caseload severalfold. Under that recommendation, an NSL could be issued in non-emergency circumstances "only upon a judicial finding" of "reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect against international terrorism or clandestine intelligence activities." Review Group Report at 89, 93 (internal quotations omitted). ·n1e Review Group did not reach a conclusion about whether to give jurisdiction over NSL requests to the fISC or other federal courts. Id. at 93. The Review Group recognized, however, that assigning such cases to the FISC "would pose a serious logistical challenge. The FISC has only a small number of judges and the FBI cWTently issues an average of nearly 60 NS Ls per day.r] It is not realistic to expect the FISC, as currently constituted, to handle that burde!J." Id. (emphasis added). We strongly agree. We are skeptical, however, that the suggestions put forward to revamp the FISC to take on such demands - "a significant expansion in the number of FISC judges" or "creation within the FlSC of several federal magistrate judges to handle NSL requests," id. - would be adequate. Moreover, even if one assumes that adequate resources can be made available to the FISC to handle the sheer volume of new cases without compromising the district court work of FISC judges, jurisdiction over 21,000 NSL requests per year would transform the FISC from an institution that is primarily focused on a relatively small number of cases that involve the most intrusive or expansive forms of intelligence collection to one primarily engaged in processing a much larger number of more routine, subpoena-type cases. We fear that such a drastic shift of emphasis would diminish the FISC's effectiveness in adjudicating and overseeing cases involving electronic surveillance, physical search or Section 702 acquisitions. 9 In annual terms, the FBI issued 21,000 NSLs in Fiscal Year 2012. Review Group Report at 90. By way of comparison, the FISC entertained 212 business records applications and 1,856 applications for electronic surveillance ancl/or physical search in calendar year 2012. Letter of Peter J. Kadzik, Principal Deputy Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, to the Honorable Harry Reid, Senate Majority Leader (Apr. 30, 2013). 9 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 13 of 19 Others have proposed changes to NSL requirements that would also have substantial, albeit less direct, effects on the FISC's caseload. For example, requiring an NSL to disclose to the receiving party the factual predicate for issuing the NSL would implicate investigative information that the FBI presumably would have good operational security reasons not to disclose in national security cases, regardless of how well-supported the NSL may be.10 These changes would likely result in the government's decreasing its reliance on NSLs for records subject to such a disclosure requirement and instead bringing to the FISC more applications under Section 501 for production of such records, in order to avoid disclosure of such information to private parties. Section 501 - Bulk Call Detail Records: Some proposals call for elimination of bulk production to the government of call detail records under Section 501. See, e.g., Review Group Report at 86-89, 115-19. If the bulk production of such records were eliminated, we anticipate that the government would bring to the FISC many more particularized applications for productions of such records or, as envisioned by the Review Group, for authorization to query bulk metadata retained in private hands. Id at 115, 118-119. Others have considered preserving the govenunent's ability to obtain bulk production of call detail records, provided that the FISC would review the substantive basis for querying that information (either before or after the fact). Any of these variations would impose significant new burdens on the FISC. Nondisclosure Provisions ofF!SC Orders: Tt is not apparent that recipients of FlSC orders are generally interested in publicly disclosing those orders. For example, a recipient of an order to produce records under Section 501 may challenge a related nondisclosure order after one year from the date the latter order was issued. See § 50l(f)(2)(A)(i), codified at 50 U.S.C. § 1861 (f)(2)(A)(i). From 2005 through 2012, the FISC granted approximately 750 applications under Section 501. To date, no recipient of a Section 501 order has ever challenged its non-disclosure obligations pursuant to Section 50l(f)(2)(A)(i). 11 Nevertheless, some have proposed substantial changes in this area. For example, the Review Group recommends that nondisclosme obligations should be placed on recipients of NSLs, Section 501 orders, pen register and trap-and-trace orders, Section 702 directives, and "similar orders directing individuals, businesses, or other institutions to turn over information to the government ... only upon a judicial finding" - presumably by the FISC in matters within its purview - "that there arc reasonable grounds to believe that disclosure would significantly threaten the national security" or another specified type of harm. Review Group Report at 10 We note that the President's Review Group recognizes that the factual predication for NSLs is likely to involve classified information. See Review Group Report at 93. 11 In cases now pending before the FISC, several providers are seeking a declaratory judgment that they may lawfully release certain aggregate statistical information about various types of orders they have received, including Section 501 orders. Those cases, however, were not brought under Section 50 l (f)(2)(/\)(i). 10 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 14 of 19 122-23. It fw1her reconunends that a nondisclosure order "remain in effect for no longer than 180 days without judicial re-approval." Id. at 123. Practically all FISC orders of various types identify the target, either directly or by disclosing target-specific information, such as a phone numher the target uses. As we understand long-standing Executive Branch classification practices, the govenunent typically regards the targets of counterintelligence or international terrorism investigations as classified while those investigations are ongoing and for at least several years thereafter. Under an approach such as the one recommended by the Review Group, we would anticipate that each application would be accompanied by a request for a nondisclosme order and that practically all applications would entail successive requests to extend those nondisclosure orders. This new form of request would require the govenunent to present, and the FISC to assess, facts and considerations that arc distinct from whether the proposed collection is warranted and U.S. person privacy interests are adequately protected. Without arriving at a policy conclusion, we are skeptical that this proposed new process would lead to greater public understanding of the implementation of fISA or other tangible benefits, and whether any such benefits are commensurate with the burdens imposed by entertaining a line of periodic requests to extend nondisclosure obligations for a large percentage of current and former FISA targets. Querying Section 702 Information: Section 702 of FISA concerns certain acquisitions of foreign intelligence information targeting non-U.S. persons who are reasonably believed to be outside the United States. Currently, the government may not target U.S. persons for acquisition under Section 702, see § 702(b )(1 ), (3), but information about U.S. persons may still be obtained (e.g., when a U.S. person communicates with a targeted non-U.S. person). Proposals have been made to generally prohibit querying data acquired under Section 702 for information about particular U.S. persons, with an exception for emergency circumstances and for U.S. persons for whom a probable cause showing has been made. 12 These proposals would engender a new set of applications to the FISC. Decisions about querying Section 702 information are now made within the Executive Branch. As a result, the Courts do not know how often the government performs queries of data previously acquired under Section 702 in order to retrieve information about a particular U.S. person. It seems likely to us, however, that the practice would be common for U.S. persons suspected of activities of foreign intelligence interest, e.g., engaging in international terrorism, so that the burden on the FlSC of entertaining this new kind of application could be substantial. 13 12 See, e.g., Review Group Report al 146 (recommending that such queries be allowed "when the government obtains a warrant based on probable cause to believe that the United States person is planning or is engaged in acts of international terrorism"). 13 For a variety of reasons, a U.S. person suspected of such activity may not otherwise be a FISA target. For example, there may be probable cause to believe that a U.S. person is engaged in international terrorism, but intelligence agencies may not have the ability to implement current forms of FISA collection against that person because of the person's location or lack of (continued ... ) 11 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 15 of 19 Selection c?fFISA Judges CWTently, the Chief J u.stice selects eleven district court judges to serve on the FISC for staggered terms not to exceed seven years. 50 U.S.C. § 1803(a)(l), (d). In order to ensure that judges bring to the FISC experiences and practices developed around the country, these judges must represent at least seven of the judicial circuits. § 1803(a)(l). At least three of the FISC judges must reside within 20 miles of Washington, D.C., so that a judge will be continuously available to ente1tain urgent matters. Id. The Chief Justice also selects three district court or circuit court judges to serve on the Court of Review for terms not to exceed seven years. § 1803(b), (d). Various proposals have been made to alter the selection or composition of judges on these Courts, 14 apparently reflecting a concern that their current membership is, or may be perceived to be, politically or ideologically slanted.15 We urge those considering these proposals to be mindful that a smoothly functioning selection process is necessary for the Courts to discharge their responsibilities. For the Courts to operate effectively, prolonged vacancies must be avoided. Maintaining a full complement of judges will become even more imperative if other legislative changes result in a heavier workload for the Courts. We are concerned that a selection process that involves more persons - and especially one that is likely to introduce political factors - would result in vacancies detrimental to Court operations and possibly to national security. It has also happened from time to time that a judge being considered for service on one of the Courts is not ultimately .selected because of issues arising from the mandatory background investigation. 16 Knowledge of a problematic background investigation would be more widespread if more persons were involved in the selection process. The prospect of potential 13( ... continued) info1mation about particular facilities. 14 The Review Group recommends dispersing the authority to select FISC judges, such that "each member of the Supreme Court would have the authority to select one or two members of the FISC from within the Circuit(s) over which she or he has jurisdiction." Review Group Report at 208. Various other proposals would involve the chief judges of the judicial circuits, the President or Congressional leadership in the selection of FISC or Court of Review judges. 15 See, e.g., Review Group Report at 207-08 (noting that ten out of the eleven current FISC judges were appointed to the district court bench by Republican presidents). The fact that both cmrent Court of Review judges were appointed to the federal appellate bench by a Democratic president receives less attention. 16 This backgrolllld investigation is required by the security measures adopted by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence, pursuant to 50 U.S.C. § 1803(c). 12 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 16 of 19 embarrassment - potentially for an individual who would continue to serve publicly for the remainder of her career as a sitting federal judge - might deter qualified judges from wanting to serve on the Courts. With specific regard to FISC operations, it is also important to maintain the practice of having multiple judges based in Washington, D.C., or its immediate vicinity. In its current form, fISA explicitly relies on a pool oflocaljudgcs to handle particular kinds of time-sensitive cases. 50 U.S.C. § 1803(c)(l ). This approach is sensible, given the severe security-related limitations on the ability of non-local judges to work on FISC matters in their home districts. For the same reason, there is a further need for local judges to handle other types of emergency situations, as well as complex matters that require a judge's engagement for longer than a single week in the ordinary duty rotation. See, e.g., Section 702(i)(l)(B) & (3)(C) (thirty-day period for FISC to review certifications and procedures for acquisitions targeting non-U.S. persons outside the United States and to provide a written statement of the reasons for its decision). Proposals that would make it more diilicult to ensure that multiple FISC judges are based in the Washington area would negatively affect FTSC operations. Finally, proposals to disperse the selection authority among the associate justices of the Supreme Court or chief judges of the federal circuits ignore the Chief Justice's unique role in the Judicial Branch. The Chief Justice is the President of the Judicial Conference of the United States, which includes the responsibility to assign federal judges across the country to the various Conference committees and other tasks, including service on special courts such as the Judicial Panel on Multidistrict Litigation.17 The Chief Justice is therefore uniquely positioned, with the assistance of the Director of the Administrative Office of the United States Courts, to review the federal judiciary and select qualified judges for additional work on the FISC or the Court of Review. 18 Public Disclosure and Declassification of Court Opinions and Other FISA-Related Information The Judicial Branch is committed to making court opinions available to the public unless there is a compelling need for secrecy. The FTSC regularly makes publicly available those of its opinions that do not contain classified information. A number of legislative proposals are aimed at making more information available to the public about FISA legal interpretations and other aspects of FISA implementation. Cases involving declassification and release of such information are pending before the Courts, so we arc especially constrained from addressing the substantive merits of these proposals. We do, 17 The associate justices have no role in this process. 18 Although the selection of judges for the FlSC and the Court of Review is often labelled as an "appointment," it is more accurately considered to be a designation to serve on the Court. 13 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 17 of 19 however, believe that the following points should be kept in mind as these proposals arc assessed. First, to the extent that the Cowts may be assigned a new role in declassification and release of information, that role should accord with the constitutional allocation of functions in that sphere. Under the Constitution, classification of information in order to protect national secmity has been considered an Executive Branch responsibility. See Dep 't of Navy v. Egan, 484 U.S. 518, 527 (l 988). When necessary to resolve a case before it (e.g., under the Freedom of Information Act, 5 U.S.C. § 552), a federal court may review classification decisions made by the Executive Branch, typically under a deferential standard. See, e.g., Krikorian v. Dep't ofState, 984 F.2d 461, 464 (D.C. Cir. 1993). Second, while we support the highest degree of transparency consistent with protection of sensitive intelligence somces and methods and other properly classified information, we believe that there are practical limitations as to what can be achieved. Significant FISC opinions frequently involve the application oflaw to a complex set of facts, e.g., how to apply FISA's fom-part definition of "electronic surveillance," see 50 U.S.C. § 1801 (f), to a proposed surveillance method for a new commw1ications teclmology. The government may often believe it necessary to withhold from the public details about how a surveillance is conducted, so that valid intelligence targets are not given a lesson in how to evade it. But a redacted opinion that does not contain this factual information may merely recite statutory provisions or provide a partial discussion of how those provisions were applied, without the factual context necessary to tmderstand the opinion's reasoning and result. In such cases, partial releases of opinions run the risk of distorting, rather than illuminating, the reasoning and result of Court opinions. That risk is probably even greater for summaries of opinions that are offered as public substitutes for withheld opinions, rather than as guides to opinions that are published. We further suggest that, apart from the need to protect national secmity, legislative proposals for release of Court opinions should take into consideration appropriate protections for other categories of information, such as the names of government personnel or information implicating substantial privacy interests. Finally, any procedural framework for public disclosure should permit the Court a reasonable time to take any necessary action. Some proposals would impose severe time constraints. FISC Role in Monitoring and Enforcing Executive Branch Compliance A common objective of proposed changes to FISA is to enhance monitoring and oversight of intelligence gathering activities. Some particularly envision new roles for the fISC in this regard. All three branches of government have responsibilities regarding FISA implementation. But it is important to recognize that the FISC does not have, and should not have, general auditing and oversight functions comparable to those performed by an Inspector General or a Congressional conunittee with jmisdiction over a particular Executive Branch agency. Judicial 14 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 18 of 19 involvement in the FISA process occurs within the context of Article III's cases or controversies requirement. FJSA currently respects those Article III limitations by contemplating FISC involvement in the form of monitoring and enforcing compliance with FISC orders and authorizations, i.e., within the context of FISC cases. 19 To the extent that legislative proposals would enhance FISC review of Executive Branch compliance within the context of a particular Ff SC case, they are less likely to present constitutional difficulties. On the other hand, proposals that would assign to the FISC duties that are disassociated from any case before it would seriously risk exceeding constitutional limitations on the involvement of an At1iclc Ill court in Executive Branch operations.20 Finally, in line with the foregoing discussion of other matters, if the flSC were to be given a greater role in monitoring and enforcing Executive Branch compliance, it would require a commensurate increase of its current resources to discharge those responsibilities effectively. 19 See 50 U.S.C. §§ I 803(h) ("Nothing in this chapter shall be construed to reduce or contravene the inherent authority of the [FISC] to determine or enforce compliance with an order or rule of such court or with a procedure approved by such court."); 1805(d)(3) ("At or before the end of the period oftime for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated."); 1824(d)(3) (same for physical search). 20 See, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 492 (2009) (Article Ill limits the judicial power to deciding cases and controversies and, except "when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action"); In re Sealed Case, 310 F.3d 717, 731 (FISA Ct. Rev. 2002) (FJSC "may well have exceeded the constitutional bounds that restrict an Article III court" by asserting authority over "the internal organization and investigative procedures of the Department of Justice which are the province of the Executive Branch (Article II) and the Congress (Article I)") (per ctrriam). 15 Case 3:16-cv-02041-HSG Document 32-3 Filed 10/13/16 Page 19 of 19 Exhibit C Case 3:16-cv-02041-HSG Document 32-4 Filed 10/13/16 Page 1 of 28 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA _______________________________________ ELECTRONIC FRONTIER FOUNDATION, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant. _______________________________________ ) ) ) ) ) ) Civil Action No. ) 14-cv-760 RMC ) ) ) ) DEFENDANT UNITED STATES DEPARTMENT OF JUSTICE’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 1 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 2 of 28 i TABLE OF CONTENTS PAGE I. INTRODUCTION ...............................................................................................................1 II. BACKGROUND .................................................................................................................2 III. ARGUMENT .......................................................................................................................4 A. Standard of Review Under Rule 60(b).....................................................................6 B. The Court Need Not Reach the Merits of Plaintiff’s Motion for Reconsideration .. 7 C. Plaintiff Has Not Satisfied the Threshold Requirement of Rule 60(b) ....................8 D. Even if Plaintiff Could Satisfy Rule 60(b)’s Threshold Requirement, Plaintiff Has Not Satisfied the Standard for Granting a Rule 60(b)(1) Motion .............................................................................................14 E. Plaintiff Has Not Satisfied the Very High Bar for Granting a Rule 60(b)(6) Motion .......................................................................................................... 19 IV. CONCLUSION ..................................................................................................................21 Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 2 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 3 of 28 ii TABLE OF AUTHORITIES CASES PAGE(S) Ackermann v. United States, 340 U.S. 193 (1950) ...................................................................................................................... 20 Alsawam v. Obama, 864 F. Supp. 2d 1 (D.D.C. 2012) .................................................................................................. 19 Canales v. A.H.R.E., Inc., 254 F.R.D. 1 (D.D.C. 2008) .......................................................................................................... 21 16 Cobalt LLC v. Harrison Career Inst., 2007 WL 6688939 (D.D.C. Mar. 28, 2007).................................................................................. 18 Computer Professionals for Soc. Responsibility v. United States Secret Serv., 72 F.3d 897 (D.C. Cir. 1996) .................................................................................................... 7, 21 Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ...................................................................................................................... 11 Douglas v. District of Columbia Housing Auth., 306 F.R.D. 1 (D.D.C. 2014) ............................................................................................................ 7 EFF v. DOJ, ___ F. Supp. 3d ___, 2015 WL 6673743 (D.D.C. Oct. 30, 2015) ................................................ 18 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ............................................................................................................ 10, 12, 13 FG Hemisphere Assocs., LLC v. Democratic Repub. of Congo, 447 F.3d 835 (D.C. Cir. 2006) .................................................................................................. 9, 15 Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79 (D.D.C. 2009) .................................................................................................. 6 Gonzales v. Crosby, 545 U.S. 524 (2005) .................................................................................................................. 7, 19 Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572 (D.C. Cir. 1980) .......................................................................................... 17, 19, 20 Gray v. Estelle, 574 F.2d 209 (5th Cir. 1978) ........................................................................................................ 19 Hall v. CIA, 437 F.3d 94 (D.C. Cir. 2006) .......................................................................................................... 7 Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 3 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 4 of 28 iii Hoai v. Vo, 935 F.2d 308 (D.C. Cir. 1991) ........................................................................................................ 6 Jarvis v. Parker, 13 F. Supp. 3d 74 (D.D.C. 2014) ............................................................................................ 15, 18 Kramer v. Gates, 481 F.3d 788 (D.C. Cir. 2007) ............................................................................................ 6, 19, 20 Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ................................................................................................................ 10, 12 LaRouche v. U.S. Dep’t of Treas., 112 F. Supp. 2d 48 (D.D.C. 2000) .................................................................................................. 6 Light v. DOJ, 968 F. Supp. 2d 32 (D.D.C. 2013) .................................................................................................. 7 Lightfoot v. District of Columbia, 555 F. Supp. 2d 61 (D.D.C. 2008) .......................................................................................... 19, 21 Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936 (D.C. Cir. 2009) ...................................................................................................... 10 Mazengo v. Mzengi, 542 F. Supp. 2d 96 (D.D.C. 2008) .................................................................................................. 7 Munoz v. Board of Trustees of University of Dist. of Columbia, 730 F. Supp. 2d 62 (D.D.C. 2010) .................................................................................................. 7 Murray v. District of Columbia, 52 F.3d 353 (D.C. Cir. 1995) .................................................................................................... 9, 14 Norris v. Salazar, 277 F.R.D. 22 (D.D.C. 2011) ........................................................................................................ 21 Richardson v. National R.R. Passenger Corp., 49 F.3d 760 (D.C. Cir. 1995) ........................................................................................................ 19 Riley v. BMO Harris Bank, N.A., ___ F. Supp. 3d ___, 2015 WL 4484106 (D.D.C. July 22, 2015) .................................... 15, 17, 18 Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380 (1993) ................................................................................................................ 15, 21 Smalls v. United States, 471 F.3d 186 (D.C. Cir. 2006) ........................................................................................................ 7 Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 4 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 5 of 28 iv Stovell v. James, 849 F. Supp. 2d 43 (D.D.C. 2012) ................................................................................................ 21 Taitz v. Obama, 754 F. Supp. 2d 57 (D.D.C. 2010) .................................................................................................. 8 Thomas v. Holder, 750 F.3d 899 (D.C. Cir. 2014) .................................................................................................... 7, 9 United States v. 8 Gilcrease Lane, 668 F. Supp. 2d 128 (D.D.C. 2009) ............................................................................................ 6, 9 United States v. 8 Gilcrease Lane, Quincy, Florida, 32351, 638 F.3d 297 (D.C. Cir. 2011) ...................................................................................................... 17 United States v. All Assets Held at Bank Julius Baer & Co., 571 F. Supp. 2d 1 (D.D.C. 2008) ............................................................................................ 10, 11 University of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) .................................................................................................................. 11 Vartelas v. Holder, 132 S. Ct. 1479 (2012) ...................................................................................................... 12, 13, 14 Walsh v. Hagee, 10 F. Supp. 3d 15 (D.D.C. 2013) .................................................................................................... 7 West v. Holder, 309 F.R.D. 54 (D.D.C. 2015) .......................................................................................................... 7 Wilson v. Prudential Fin., 218 F.R.D. 1 (D.D.C. 2003) .......................................................................................................... 15 STATUTES 50 U.S.C. § 1871 ............................................................................................................. 10, 11, 12, 13 50 U.S.C. § 1872 ............................................................................................................................... 11 Pub. L. No. 114-23, 129 Stat. 268 ................................................................................................ 4, 10 LEGISLATIVE MATERIALS 113th Cong., 1st Sess. S. 1130 (June 11, 2013) .......................................................................... 11, 18 161 Cong. Rec. S3439 (June 2, 2015) .............................................................................................. 17 Cong. Rec. H4707 (daily ed. May 21, 2014) .................................................................................... 18 MISCELLANEOUS In re Applications of the Federal Bureau of Investigation for Orders Requiring the Production of Tangible Things ............................................................................................... 14 Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 5 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 6 of 28 1 I. INTRODUCTION Plaintiff asks this Court to undo its judgment in favor of Defendant on the basis of a newly articulated legal theory that Plaintiff admittedly knew about seven months ago—during dispositive briefing—and yet failed to bring to the Court’s attention until months after judgment was entered. The Court should resist Plaintiff’s effort to re-litigate this case now on a different legal theory. In its Motion for Reconsideration (“Pl. Mot.”), ECF No. 26, Plaintiff belatedly raises the point that Section 402 of the USA Freedom Act of 2015, enacted on June 2, 2015, directs the Government to declassify certain FISC opinions. That means, according to Plaintiff, that the Government could not withhold in full under Exemptions 1 and 3 of the Freedom of Information Act (“FOIA”) the Foreign Intelligence Surveillance Court (“FISC”) opinion that was the sole document at issue in this case by the time Plaintiff filed its initial dispositive brief on June 1, 2015. And thus, by extension, Plaintiff argues that Section 402 warrants vacating the judgment the Court entered in Defendant’s favor on October 30, 2015. None of Plaintiff’s arguments warrants vacating the judgment the Court entered and requiring the parties to re-litigate the merits of this suit. Plaintiff’s reconsideration motion is based, in the alternative, on Rule 60(b)(1) and Rule 60(b)(6) of the Federal Rules of Civil Procedure. As a matter of law, however, Rule 60(b) cannot be used to assert legal theories that could have—and should have—been raised prior to judgment. That is what Plaintiff is trying to do here. Plaintiff admits it knew about the statutory provision prior to filing its reply in support of its partial summary judgment motion nearly six weeks after Congress enacted the statute. Plaintiff said nothing then or during the nearly five months between enactment and the entry of judgment. Moreover, based on the description of the withheld document set forth in the Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 6 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 7 of 28 2 classified declaration of Dr. Sherman, the document was properly withheld in its entirety in this case, and there is thus no need to address the issue of whether Section 402 applies here. But even assuming arguendo that the Court reaches the merits of the motion for reconsideration, Plaintiff has not satisfied the requirements of Rule 60(b). As a threshold matter, Plaintiff must demonstrate that its statutory argument has at least some merit. It has not done so. Plaintiff does not mention, let alone explain, how a statutory provision enacted on June 2, 2015, which requires the declassification of certain FISC opinions, could apply retroactively to an opinion issued years before. Even if Plaintiff crosses this threshold, however, it has failed to show that this is one of those rare cases warranting relief under Rule 60(b)(1) or that this case involves the extraordinary circumstances necessary for the Court to grant relief under Rule 60(b)(6). Plaintiff was in control of whether or not to raise the argument prior to judgment and its failure to do so until now risks significant further delay of these proceedings. Where litigants make that kind of choice, courts will not rescue them when it turns out that choice was improvidently made. For these reasons, Plaintiff’s motion for reconsideration should be denied. II. BACKGROUND On May 1, 2014, Plaintiff filed this FOIA suit arising out of four separate FOIA requests it had made to the National Security Division (“NSD”) of the Department of Justice from August 2012 to March 2014. See Complaint, ECF No. 1. These FOIA requests sought various orders issued by the FISC, the Foreign Intelligence Surveillance Court of Review (“FISC-R”), the Supreme Court, as well as certain documents related to or referenced in certain of these opinions. See Memorandum of Points and Authorities in Support of the Department of Justice’s Motion for Summary Judgment, ECF No. 15-1, at 2-6 (summarizing case background). Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 7 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 8 of 28 3 Defendant produced numerous redacted documents in response to these various requests, but it withheld one document in full. See id. The document Defendant withheld in full was a FISC opinion “whose citation was redacted from footnote 15 of the October 3, 2011 FISC opinion, the withholding of which Judge Berman Jackson” had previously “upheld pursuant to FOIA exemption (b)(1) in EFF v. DOJ, No. 12-1441.” Id. at 3. Plaintiff indicated that it intended to challenge both the withholding in full and many of the other withholdings. See id. at 3-6. On May 1, 2015, Defendant moved for summary judgment on all contested issues. See Motion for Summary Judgment, ECF No. 15, with supporting classified and unclassified declarations, see ECF Nos. 15-4, 15-5, 15-6. In its partial opposition and partial summary judgment motion, Plaintiff chose to narrow the issues in contention to one: the withholding in full of the single FISC opinion described above, which was then, as Plaintiff describes it, “the sole focus of this case.” See Memorandum in Partial Opposition to Defendant’s Motion for Summary Judgment and in Support of Plaintiff’s Cross-Motion for Partial Summary Judgment, ECF No. 17, at 1-2, 4 & n.4. The opinion at issue was described in footnote 15 of the October 3, 2011 FISC Opinion referenced above as “h[olding] that 50 U.S.C. § 1809(a)(2) precluded the FISC from approving the Government’s proposed use of certain data acquired by [the NSA] without statutory authority through ‘Upstream’ collection.” Opinion, ECF No. 22, at 2.1 On July 1, 2015, Defendant filed its reply in support of its summary judgment motion and in opposition to Plaintiff’s partial summary judgment motion. See Defendant’s Reply and Opposition to Plaintiff’s Cross-Motion for Partial Summary Judgment, ECF No. 19. Defendant also lodged a classified declaration by Dr. David J. Sherman of the NSA to “more fully explain 1 Plaintiff was “aware of the holding of the Section 1809 Opinion because it was referenced in an October 3, 2011 FISC opinion.” Opinion, at 2. Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 8 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 9 of 28 4 why the government is entitled to withhold the ‘Section 1809 Opinion’ in full.” Redacted Classified Supplemental Declaration of David J. Sherman, ECF No. 19-2, ¶ 2. Plaintiff filed its reply brief on July 15, 2015, without ever mentioning the USA Freedom Act of 2015. The Act was signed into law six weeks earlier, on June 2, 2015. See USA Freedom Act of 2015, Pub. L. No. 114-23, 129 Stat. 268. The Act contains a provision which requires the Director of National Intelligence (“DNI”), in consultation with the Attorney General, to “conduct a declassification review of each decision, order, or opinion issued” by the FISC or FISC-R “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term.’” Id. § 402. The statute provides that the DNI and the Attorney General may satisfy this requirement by making the decision publicly available in redacted form or, in the interests of national security, may waive the requirement to declassify the decision if a summary of the decision is made publicly available. Id. On October 30, 2015, nearly five months after the USA Freedom Act of 2015 was enacted, the Court issued its opinion granting summary judgment for Defendant and denying Plaintiff’s partial summary judgment motion. See Opinion, at 12. In so ruling, the Court specifically relied on the classified and unclassified declarations submitted by Defendant, including the classified declaration of Dr. Sherman, filed on July 1, 2015. See id. at 7-12. The Court held that the “document has been properly withheld in its entirety under Exemption 1” because the “Section 1809 Opinion is classified” and “disclosure of any part of [that] Opinion could reasonably be expected to cause grave damage to national security.” Id. at 9, 12. The Court also found that “Exemption 3 applies here as well.” Id. at 9 n.8. In a separate order, dated October 30, 2015, the Court entered judgment in favor of Defendant. See Order, ECF No. 23. Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 9 of 27Case 3: 6-cv-02 41-HSG Document 32-4 il 10/13/ 10 of 28 5 Plaintiff did not file a Rule 59(e) motion to alter or amend the judgment on the basis of Section 402 of the USA Freedom Act of 2015 (or on any other basis) within the 28-day period allowed by that rule. See Fed. R. Civ. P. 59(e). On December 24, 2015, Plaintiff filed a Notice of Appeal of this Court’s judgment. See Notice of Appeal, ECF No. 24. Nearly three weeks later, on January 12, 2016, Plaintiff filed a Rule 60(b)(1) and (b)(6) motion for reconsideration of this Court’s Order and Opinion “in light of changes to the law worked by” Section 402 of the USA Freedom Act, which it says has “clear application to this case.” See Pl. Mot. at 1, 6. III. ARGUMENT The Court should deny Plaintiff’s Rule 60(b) motion for reconsideration for five reasons. First, as a matter of law, a party cannot use Rule 60(b) to present new legal theories that were available to it prior to the entry of judgment. Second, based on the description of the withheld document set forth in the classified declaration of Dr. Sherman, the document was properly withheld in its entirety in this case, and there is thus no need to address the issue of whether Section 402 applies here. Third, even assuming the Court reaches the merits of Plaintiff’s motion, Plaintiff has not satisfied Rule 60(b)’s threshold requirement that its statutory argument has at least some merit. Plaintiff does not explain—indeed does not even address—why Section 402 of the USA Freedom Act should be applied retroactively to FISC opinions issued before the statute was enacted. Fourth, Plaintiff has not shown why failing to raise during the parties’ summary judgment briefing (or thereafter) the legal impact of Section 402 of the USA Freedom Act of 2015, which it now claims has “clear application to this case,” Pl. Mot. at 6, is neglect that is “excusable” within the meaning of Rule 60(b)(1). And finally, Plaintiff’s alternative Rule 60(b)(6) argument fails to evidence the extraordinary circumstances that must be present to grant Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 10 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 11 of 28 6 relief under that catch-all provision. Each of these arguments will be addressed in turn below after a discussion of the applicable standard of review. A. Standard of Review Under Rule 60(b). Plaintiff has moved to reconsider this Court’s judgment under Rule 60(b) of the Federal Rules of Civil Procedure. See Pl. Mot. at 5-7 & n.2. As an initial matter, where, as here, “a Rule 60(b) motion and an appeal are pending simultaneously, appellate review may continue uninterrupted.” Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir. 1991). But whereas the district court “ha[s] authority to deny” a Rule 60(b) motion while the appeal is pending,” it “does not have jurisdiction to grant a Rule 60(b) motion . . . .” LaRouche v. U.S. Dep’t of Treas., 112 F. Supp. 2d 48, 52 (D.D.C. 2000). Instead, if the district court would grant the Rule 60(b) motion, it must indicate that it would do so “if it had jurisdiction,” Gates v. Syrian Arab Republic, 646 F. Supp. 2d 79, 83-84 (D.D.C. 2009) (Collyer, J.), and the movant may then “move the appellate court for a remand in order that relief may be granted.” Hoai, 935 F.2d at 312. Here, Plaintiff relies on two provisions of Rule 60(b) to obtain relief from the Court’s judgment: Rule 60(b)(1) and 60(b)(6). Rule 60(b) provides, in pertinent part, that “[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). “Relief under Rule 60(b)(1) motions is rare,” Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006), however, and relief under Rule 60(b)(6)’s “catch-all provision,” United States v. 8 Gilcrease Lane, 668 F. Supp. 2d 128, 131 (D.D.C. 2009) (Collyer, J.), “should be only sparingly used.” Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007). This is because “Rule 60(b) was intended to preserve the delicate balance between the sanctity of final judgments and the incessant command of the [C]ourt’s conscience that justice be Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 11 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 2 of 28 7 done in light of all the facts.” Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006). The district court has discretion to determine whether a party should be granted relief under Rule 60(b), Mazengo v. Mzengi, 542 F. Supp. 2d 96, 98 (D.D.C. 2008) (Collyer, J.), and this “large measure of discretion” “may be reversed only for abuse of [that] discretion” “unless [the decision was] rooted in an error of law.” Computer Prof’ls for Soc. Responsibility v. United States Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996). Plaintiff bears the burden of proof that it is entitled to relief from the judgment of the Court. See Light v. DOJ, 968 F. Supp. 2d 32, 36 (D.D.C. 2013) (Collyer, J.). To carry this burden, Plaintiff must first, as a “threshold requirement,” show that its claim has “at least some merit.” Thomas v. Holder, 750 F.3d 899, 902 (D.C. Cir. 2014). Thereafter, Plaintiff must demonstrate that this is one of those “rare” cases warranting relief under Rule 60(b)(1), Hall, 437 F.3d at 99, or one of those cases involving “extraordinary circumstances” warranting relief under Rule 60(b)(6). See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Plaintiff has done none of those things. But, even more fundamentally, the Court need not reach the merits of Plaintiff’s motion at all in order to deny it. B. The Court Need Not Reach the Merits of Plaintiff’s Motion for Reconsideration. Plaintiff’s Rule 60(b) motion fails for two basic, preliminary reasons. First, “the cases are quite clear that Rule 60(b) is not a vehicle for presenting theories or arguments that could have been raised previously.” West v. Holder, 309 F.R.D. 54, 56 (D.D.C. 2015).2 In its motion for reconsideration Plaintiff argues that Section 402 of the USA Freedom Act of 2015 precludes 2 See also Douglas v. District of Columbia Housing Auth., 306 F.R.D. 1, 5 (D.D.C. 2014) (same); Walsh v. Hagee, 10 F. Supp. 3d 15, 19 (D.D.C. 2013) (same); Taitz v. Obama, 754 F. Supp. 2d 57, 61 (D.D.C. 2010) (“[P]laintiff cannot use [its] Rule 60(b) motion to raise legal arguments that were available to [it before].”); Munoz v. Board of Trustees of Univ. of Dist. of Columbia, 730 F. Supp. 2d 62, 69 n.1 (D.D.C. 2010) (“[P]laintiff cannot use a Rule 60(b)(1) motion to raise a new theory or argument.”). Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 12 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 13 of 28 8 the Government from withholding in full the Section 1809 Opinion. Plaintiff did not make this argument to the Court before. It had the chance to do so, too. To be sure, Congress enacted the USA Freedom Act of 2015 on June 2, one day after Plaintiff filed its partial summary judgment motion. See Pl. Mot. at 3. What Plaintiff does not say, however, is that it subsequently filed a reply brief in support of that dispositive motion nearly six weeks later where it failed to mention Section 402, let alone claim at that time that it has “clear application to this case.” Pl. Mot. at 6. And Plaintiff failed to make the argument to the Court during the entire almost five-month period between enactment and the entry of judgment. This is fatal to its Rule 60(b) motion. Second, based on the description of the withheld document set forth in the classified declaration of Dr. David J. Sherman, the document was properly withheld in its entirety in this case, and there is thus no need to address the issue of whether Section 402 of the USA Freedom Act applies here. That declaration was lodged with the Court on July 1, 2015, see ECF No. 18-1, ¶ 9, for its in camera and ex parte review in conjunction with Defendant’s Reply and Opposition to Plaintiff’s Cross-Motion for Partial Summary Judgment, ECF No. 19. C. Plaintiff Has Not Satisfied the Threshold Requirement of Rule 60(b). Assuming arguendo that the Court proceeds to consider the merits of the motion for reconsideration, Plaintiff fails to satisfy the threshold requirement that its claim has at least some merit. Plaintiff devotes nearly one-third of its brief to an explanation of how Section 402 of the USA Freedom Act of 2015 purportedly “preclude[s]” Defendant “from adopting the position” it took in this litigation. Pl. Mot. at 1, 7-9. But Plaintiff says nary a word about the statutory elephant in the room: the language of Section 402 contains no indication of any retroactive application to FISC opinions issued before the enactment of the statute. This alone is fatal to Plaintiff’s efforts to satisfy the threshold requirement that Plaintiff could prevail here if the Court Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 13 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 14 of 28 9 had jurisdiction to grant the Rule 60(b) motion. “It has long been established that, as a precondition to relief under Rule 60(b), the movant must provide the district court with reason to believe that vacating the judgment will not be an empty exercise or a futile gesture.” Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995); see also Thomas, 750 F.3d at 902 (noting that this “threshold requirement” is “well-established”); 8 Gilcrease Lane, 668 F. Supp. 2d at 131 (“Critically, the movant must demonstrate a meritorious claim or defense.”). This threshold “requirement advances judicial economy” because “there seems little point in a nuanced treatment of data bearing on the excusability of the movant’s neglect,” for example, if the underlying “claim is plainly meritless.” FG Hemisphere Assocs., LLC v. Democratic Repub. of Congo, 447 F.3d 835, 842 (D.C. Cir. 2006); see Thomas, 750 F.3d at 903 (“The requirement that parties seeking Rule 60(b) relief show some prospect of succeeding on the merits flows from the basic principle that courts should revive previously-dismissed claims only if they have some reason to believe that doing so will not ultimately waste judicial resources.”). This is not “a particularly high bar,” Thomas, 750 F.3d at 902, because the claim “need not be ironclad” in order for the movant to “establish that it possesses a potentially meritorious claim . . . , which, if proven, will bring success in its wake.” Murray, 52 F.3d at 355. The movant may satisfy this prerequisite by “provid[ing] at least a hint of a suggestion that [it] might prevail.” Thomas, 750 F.3d at 902. Despite the low bar, however, Plaintiff has not provided even a hint that it can satisfy this threshold legal requirement. As noted, Plaintiff’s motion neither considers nor explains how a statute that imposes an obligation on the Government to declassify certain FISC opinions applies retroactively to an opinion issued years before enactment of the statute. Courts employ a “two- step test” to determine whether a statute should apply retroactively to conduct that occurred Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 14 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 15 of 28 10 before the statute was enacted. See United States v. All Assets Held at Bank Julius Baer & Co., 571 F. Supp. 2d 1, 9 (D.D.C. 2008). First, courts “look to whether Congress has expressly prescribed the statute’s proper reach.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006); Landgraf v. USI Film Prods., 511 U.S. 244, 263, 280 (1994) (requiring an “unambiguous directive” or “express command”); Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936, 939 (D.C. Cir. 2009) (“express command”). “[I]n the absence of language as helpful as that,” courts “try to draw a comparably firm conclusion about the temporal reach specifically intended by applying . . . normal rules of [statutory] construction.” Fernandez-Vargas, 548 U.S. at 37. The “requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.” Landgraf, 511 U.S. at 268. Here, while the statutory text of Section 402 is silent on the “temporal reach” of that provision, see USA Freedom Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 § 402; Fernandez- Vargas, 548 U.S. at 37, the Court can still draw the “firm conclusion” that the provision was not intended to apply retroactively. Section 402 of the Act amended Title 50 of the United States Code section 1871 et seq. Section 1871 provides for semi-annual reports on foreign intelligence surveillance to be provided by the Attorney General to specific committees in Congress. See 50 U.S.C. § 1871. Pertinent here is the statutory requirement that the Attorney General submit to those committees “a copy of each” FISC decision involving, inter alia, a “significant construction or interpretation of any provision of law” or “a novel application” of law “that was issued during the five-year period ending” on the date the statute was amended to incorporate this new requirement. Id. §§ 1871(c)(1), (c)(2). In Section 1871, therefore, Congress made clear its intent that the provision applied retroactively to FISC opinions issued prior to the enactment Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 15 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 16 of 28 11 of this provision. In contrast, Congress did not include the same retroactivity language in Section 402 of the USA Freedom Act, even though the subject matter of the two provisions was similar (disclosure of a similar set of FISA decisions), and even though the two provisions now sit side by side in the same subchapter of the United States Code. See 50 U.S.C. §§ 1871, 1872. “Congress’ choice of words is presumed to be deliberate,” University of Texas Southwestern Medical Center. v. Nassar, 133 S. Ct. 2517, 2529 (2013). Given that Congress clearly “knows how to,” Dole Food Co. v. Patrickson, 538 U.S. 468, 476 (2003), add a retroactivity provision to a statute about the disclosure of certain FISC opinions “where [it] intends to” do so, id., the “absence of this language” in the same subchapter “instructs [the Court] that Congress did not intend to,” id., have Section 402 be retroactive. This “firm conclusion” is buttressed by the legislative history of Section 402 of the USA Freedom Act. For example, an earlier bill presented to the Senate on June 11, 2013, would have required the same FISC decisions issued in the five years before enactment, and that are “required to be submitted to committees of Congress” under 50 U.S.C. § 1871(c)(2), to be declassified “not later than 180 days after” enactment. See 113th Cong., 1st Sess. S. 1130 § 4(a)(1)(i)(2)(B). That provision, which was intended to have a similar retroactive effect as 50 U.S.C. § 1871(c)(2), was not included in Section 402 of the USA Freedom Act of 2015. Based both on a comparison of Section 402 with a similar provision in the same subchapter, as well as a review of the legislative history of Section 402, the Court can draw the “firm conclusion” that the provision was not intended to apply retroactively. And if the Court finds that Congress has prescribed the statute’s reach in this manner, “the inquiry is over.” All Assets Held at Bank Julius Baer & Co., 571 F. Supp. 2d at 9. Then “there is no need to resort” to Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 16 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 17 of 28 12 the presumption against retroactivity in the second step of the retroactivity analysis. See Landgraf, 511 U.S. at 280.3 The second step in the two-step retroactivity analysis applies only if the Court cannot determine Congress’ specific intent regarding the provision’s temporal reach. In that case, the Court applies the presumption against retroactivity and asks whether applying the statute would “have a retroactive consequence in the disfavored sense,” Fernandez-Vargas, 548 U.S. at 37, of “impos[ing] new duties” on a party with respect to “events completed before its enactment.” Landgraf, 511 U.S. at 270, 280. If so, then the Court applies the “presumption against retroactivity by construing the statute as inapplicable to the event or act in question owing to the ‘absence of a clear indication from Congress that it intended such a result.’” Fernandez-Vargas, 548 U.S. at 37-38 (citation and alterations omitted); see also Vartelas v. Holder, 132 S. Ct. 1479, 1491 (2012) (“The operative presumption . . . is that Congress intends its laws to govern prospectively only.”).4 3 This reading of Section 402 as non-retroactive is consistent with that held by the Privacy & Civil Liberties Oversight Board (“PCLOB”), which issued a Recommendations Assessment Report earlier today. See PCLOB, Recommendations Assessment Report (Feb. 5, 2016) (“PCLOB Report”), https://www.pclob.gov/library/Recommendations_Assessment_Report_20160205.pdf. There, the PCLOB reported that “the USA FREEDOM Act now requires that the government will conduct declassification review of each new decision of the FISC and FISCR” that meet the statutory criteria of Section 402. See id. at 8 (emphasis added). Additionally, while Section 402 does not require the declassification of prior decisions as a matter of law, the PCLOB notes that the “Intelligence Community has continued to declassify and release previously issued FISC decisions and related materials over the past year” and post them on the Intelligence Community’s website, IC on the Record. See id. at 9. The Intelligence Community “will continue to conduct declassification reviews of both older and more recent opinions.” Id. 4 As the Supreme Court has noted, “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf, 511 U.S. at 265. Indeed, “the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Id. Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 17 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 18 of 28 13 Here, applying Section 402 of the USA Freedom Act of 2015 to the Section 1809 Opinion at issue would have a “disfavored” “retroactive consequence.” Fernandez-Vargas, 548 U.S. at 37. Specifically, a requirement that the Government now review all FISC Opinions issued since 1978, when FISA was enacted, to include the Section 1809 opinion at issue here, in order to ensure that it is in compliance with the new declassification provisions of Section 402 would impose a new, burdensome obligation on the Government in relation to “events completed before its enactment.” Vartelas, 132 S. Ct. at 1491; see also Pl. Mot. at 6 (“new statute places affirmative obligations on the government”). The relevant “events,” Vartelas, 132 S. Ct. at 1491, “completed act[s],” or “predicate action[s],” Fernandez-Vargas, 548 U.S. at 44, here are the FISC’s issuance of its opinions. At the time the FISC issued its Section 1809 Opinion, the Government was under an obligation to submit certain FISC opinions to specific committees in Congress. See 50 U.S.C. § 1871(c)(2). The Government was not, however, under a duty or obligation at that time to comply with Section 402’s declassification provisions, see Pl. Mot. at 2 (recognizing that Section 402 “imposes a new transparency obligation”). Requiring the Government to declassify such opinions now would amount to the imposition of a new legal obligation. Section 402 contains no “clear indication from Congress that it intended” to disrupt settled expectations in this manner. Fernandez-Vargas, 548 U.S. at 38. Neither the Government, which litigated ex parte before the FISC, nor the FISC, which wrote the classified opinions based on the Government’s classified arguments, would have expected that FISC decisions about intelligence-gathering programs with highly classified operative details would be Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 18 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 19 of 28 14 statutorily subject to public disclosure, even in redacted form.5 These expectations have, of course, changed regarding the issuance of FISC opinions since the enactment of Section 402. Now, FISC judges may carefully write opinions so as to avoid classified information entirely, thus allowing the unredacted publication of certain of its rulings. See, e.g., In re Applications of the Federal Bureau of Investigation for Orders Requiring the Production of Tangible Things, Memorandum Opinion Dkt. Nos. BR 15-77, 15-78, available at http://www.fisc.uscourts.gov/sites/default/files/BR%2015-77%2015- 78%20Memorandum%20Opinion.pdf. But such changes only confirm that Section 402 should not be interpreted to produce the disruption that would result from statutorily requiring the declassification review of FISC opinions that arose in the context of different disclosure obligations. Cf. Vartelas, 132 S. Ct. at 1491 (“Although not a necessary predicate for invoking the antiretroactivity principle, the likelihood of reliance on prior law strengthens the case for reading a newly enacted law prospectively.”). Accordingly, because Plaintiff has failed to show—indeed failed to even mention—how Section 402 could apply to the Section 1809 FISC Opinion when the opinion was issued years before the statute’s enactment, Plaintiff has not shown that “vacating the judgment will” be anything other than “an empty exercise or a futile gesture.” Murray, 52 F.3d at 355. For this reason alone, the Court may deny Plaintiff’s Rule 60(b) motion. D. Even if Plaintiff Could Satisfy Rule 60(b)’s Threshold Requirement, Plaintiff Has Not Satisfied the Standard for Granting a Rule 60(b)(1) Motion. The Rule 60(b)(1) analysis must begin with the recognition that Plaintiff was fully aware of Section 402, had the opportunity to raise arguments about its applicability for nearly five 5 See PCLOB Report at 8 (noting that these “older FISC opinions [were] drafted without [the] expectation of public release”). Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 19 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 20 of 28 15 months before the Court entered judgment for Defendant, and chose to remain silent. Plaintiff seeks relief on the grounds that it was “excusable neglect” for it to keep quiet in these circumstances. That relief should be denied. Whether Plaintiff’s “neglect” is “excusable” is, “at bottom[,] an equitable” question and “all relevant circumstances surrounding the party’s omission” should be taken into “account.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993). These circumstances include [1] “the reason for the delay, including whether it was within the reasonable control of” Plaintiff”; [2] “the length of the delay and its potential impact on judicial proceedings”; [3] whether Plaintiff “acted in good faith”; and [4] “the danger of prejudice to” Defendant. Id.; FG Hemisphere Assocs., LLC, 447 F.3d at 838 (the Pioneer “test governs our determination under Rule 60(b)(1)”). The circumstances of this case show that Plaintiff’s neglect was not “excusable.” First, Plaintiff clearly had control over the events leading to the delay, and thus this Pioneer factor favors denial of Plaintiff’s Rule 60(b)(1) motion. Courts have found that this factor is “perhaps the most important single factor” in the Rule 60(b)(1) analysis. Riley v. BMO Harris Bank, N.A., ___ F. Supp. 3d ___, 2015 WL 4484106, at *6 (D.D.C. July 22, 2015); Jarvis v. Parker, 13 F. Supp. 3d 74, 78 (D.D.C. 2014) (same); see also Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003) (this is “the key factor”). Plaintiff tries to explain its previous silence by asserting that it failed to raise the issue before “based on its mistaken-but-good-faith belief that the government would declassify and release” the Section 1809 Opinion pursuant to Section 402 of the USA Freedom Act of 2015 “on or around the 180-day transition period deadline,” Pl. Mot. at 6, which ended on November 29, 2015. Id. at 4. Plaintiff recognizes, however, that Section 402 does not, unlike two other Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 20 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 21 of 28 16 provisions of the statute, contain a transition period at all. Id. Instead, Plaintiff says it “believed the 180-day transition period would function as a similarly significant deadline for purposes of declassification” based “in part . . . on communications members of its staff had with members of the executive branch” and based on its recognition that the “declassification process can be complex and time-consuming.” Id. This is not enough to make Plaintiff’s silence excusable. As an initial matter, Plaintiff does not identify the members of its staff who it asserts communicated with the Government, nor does it identify the “executive branch officials” with whom Plaintiff’s staff members communicated. See Declaration of David L. Sobel (“Sobel Decl.”), ECF No. 26-1, ¶ 6. Nor does Plaintiff tell us when these discussions occurred, other than after passage of the Act. If, for example, such discussions all occurred after the Court issued its order, then that fact is of no help to Plaintiff here. Nor, beyond stating vaguely that these apparent communications involved “discussions about the declassification process and its estimated completion,” id., does Plaintiff describe the content of those putative communications. For example, Plaintiff does not proffer that these “executive branch officials” had authority to bind the government in litigation, or that they explained that Section 402 would be construed to apply retroactively to FISC opinions issued years before the statute’s enactment, including the Section 1809 Opinion, or that there was no need for Plaintiff to raise the issue with the Court. But even if everything Plaintiff claims is true, Plaintiff could have—yet did not—bring the enactment of Section 402 to the Court’s attention and then either brief the issue or ask the Court to postpone briefing or ruling on the summary judgment motions until the transition period (that did not exist) ended. Plaintiff was the party with the incentive to raise this statutory argument because—under Plaintiff’s reading of that provision—any decision by the Court could Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 21 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 22 of 28 17 be rendered moot within weeks by the forthcoming declassification of the Section 1809 Opinion. See Riley, 2015 WL 4484106, at *6 (finding that the “cause of the delay” was “Plaintiff’s decision” where it was the party that “had an incentive to raise the argument”). Plaintiff made the litigation choice not to take that judicially economical step. And it must live with that choice. The Court of Appeals has consistently held that “Rule 60(b) cannot . . . be employed simply to rescue a litigant from strategic choices that later turn out to be improvident.” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980); see also United States v. 8 Gilcrease Lane, Quincy, Florida, 32351, 638 F.3d 297, 301 (D.C. Cir. 2011) (noting that the Court of Appeals has “emphasized” this point “several times” and that its “teaching has guided much of [its] Rule 60(b) caselaw”). Otherwise, Rule 60(b)(1) would be used to make the type of tardy argument Plaintiff wants to make here. Second, the Pioneer factor addressing the length of the delay and its impact on the proceedings favors denial here, too. Plaintiff acknowledges (as it must) that it was aware of “the new law and the law’s declassification requirements,” Pl. Mot. at 6, during this litigation. Indeed, Plaintiff acknowledges that it “participated in the public debate on [the] USA Freedom [Act] throughout the legislative process,” Sobel Decl. ¶ 4, that took two years, see 161 Cong. Rec. S3439, S3442 & S3443 (June 2, 2015) (daily ed.) (statement of Sen. Leahy). But even if the delay is considered to be seven months, instead of from the inception of this suit,6 courts have found a delay of this length “significant,” particularly where, as here, the movant was aware of the issue throughout that time. See Riley, 2015 WL 4484106, at *6 (finding a “six-month delay” “significant in light of the fact that Plaintiff’s counsel was 6 See Cong. Rec. H4707, H4709 (daily ed. May 21, 2014) (statement of Rep. Jackson Lee) (declassification provision in bill pending at time FOIA suit filed); 113th Cong., 1st Sess. S. 1130 (June 11, 2013) (bill pending in the Senate requiring declassification of certain FISC opinions nearly a year before suit filed). Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 22 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 3 of 28 18 apparently aware of” the issue); 16 Cobalt LLC v. Harrison Career Inst., 2007 WL 6688939, at *8 (D.D.C. Mar. 28, 2007) (“seven month[]” delay). This delay has impacted and will impact these proceedings. Plaintiff never once brought the matter to the Court’s attention while the parties briefed the issue of whether the Government could withhold in full the Section 1809 Opinion. The Court then “expended considerable time and resources,” 16 Cobalt LLC, 2007 WL 6688939, at *8, in reading the briefs and classified and unclassified declarations as well as in drafting its Opinion, which is to be published. See EFF v. DOJ, ___ F. Supp. 3d ___, 2015 WL 6673743 (D.D.C. Oct. 30, 2015). Now, Plaintiff basically suggests none of that was necessary, and that summary judgment must be re-litigated in light of a statutory provision it knew about all along. Also, entertaining Plaintiff’s tardy legal argument now will continue to impact and delay these proceedings unless the Court simply denies this Rule 60(b) motion. Further delay is inherent in Plaintiff’s proffered course of awaiting a remand from the Court of Appeals, deciding the Rule 60(b) motion, and then (once again) deciding the parties’ subsequent summary judgment motions. The third and fourth factors of the Rule 60(b)(1) analysis—prejudice to the non-movant and good faith of the movant—are less important under these circumstances. Where, as here, the “choice was within Plaintiff’s control and caused a significant delay, the Court shall not rescue Plaintiff even if that choice was not taken in bad faith.” Riley, 2015 WL 4484106, at *6; see also Jarvis, 13 F. Supp. 3d at 78-80 (finding no “excusable neglect” where there was no prejudice to the non-movant, no lengthy delay, and “no reason to believe that [the movant’s] counsel acted in bad faith”). For these reasons, Plaintiff has failed to demonstrate that it is entitled to relief under Rule 60(b)(1). Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 23 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 24 of 28 19 E. Plaintiff Has Not Satisfied the Very High Bar for Granting a Rule 60(b)(6) Motion. Plaintiff devotes a mere three sentences in a footnote to arguing, in the alternative, that “this Court should grant [Plaintiff’s] motion under Rule 60(b)(6), which permits the amendment of a judgment for ‘any other reason that justifies relief.’” Pl. Mot. at 7 n.2 (quoting Rule 60(b)(6)). The Court “need not consider cursory arguments made only in a footnote,” Alsawam v. Obama, 864 F. Supp. 2d 1, 5 (D.D.C. 2012), but, if it does, it should give Plaintiff’s argument the same equally short shrift Plaintiff gave it. Rule 60(b)(6) gives a district court “broad latitude to relieve a party from judgment” for reasons not specified in Rule 60(b)(1) or any of the other subsections. See Richardson v. National R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995). But that “latitude ‘should only be sparingly used,’” Lightfoot v. District of Columbia, 555 F. Supp. 2d 61, 70 (D.D.C. 2008) (quoting Good Luck Nursing Home, 636 F.2d at 577), such that relief under Rule 60(b)(6) should be granted only where there are “extraordinary circumstances justifying the reopening of a final judgment.” Gonzalez, 545 U.S. at 535. “In short, [Plaintiff] must clear a very high bar to obtain relief under Rule 60(b)(6).” Kramer, 481 F.3d at 792. Plaintiff argues that “reconsideration under rule 60(b) is proper, even if the initial omission was ‘inexcusable,’” “where a party timely raises an issue ‘so central to the litigation that it shows the initial judgment to have been manifestly unjust.’” Pl. Mot. at 7 n.2 (quoting Good Luck Nursing Home, Inc., 636 F.2d at 577 and citing Gray v. Estelle, 574 F.2d 209, 214-15 (5th Cir. 1978)). The problems with this argument are threefold. First, the Good Luck Nursing Home and Gray cases involved “previously undisclosed” facts and not, as here, a previously unarticulated legal theory supporting Plaintiff’s partial summary judgment. Plaintiff has pointed to no case law where Rule 60(b)(6) relieved a movant from judgment when the movant Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 24 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 25 of 28 20 knowingly chose not to raise a legal theory to support its case prior to the entry of final judgment. Second, even if Plaintiff’s newfound legal theory were construed as a statutory “fact” requiring the declassification of the Section 1809 Opinion, this does not help Plaintiff. “[A] party that . . . has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down.” Good Luck Nursing Home, Inc., 636 F.2d at 577 (emphasis added). And, as Defendant explained above, see supra, at 17, Plaintiff cannot show that its failure was anything other than a strategic choice it now regrets. Courts will not “rescue” a litigant from an improvident “litigation choice” because “Rule 60(b)(6) is not an opportunity for unsuccessful litigants to take a mulligan.” Kramer, 481 F.3d at 792; see also Ackermann v. United States, 340 U.S. 193, 198 (1950) (A movant may not obtain relief under Rule 60(b)(6) from “free, calculated, [and] deliberate choices”). It is thus not “manifestly unjust” to deny Plaintiff a chance to belatedly make its new argument after judgment already has been entered. Third, Plaintiff’s reliance on the Good Luck Nursing Home case may be misplaced to the extent that the Court of Appeals there found that a movant’s “inexcusable” failure to present a known fact to the Court, even when “central to the litigation,” could be grounds for a Rule 60(b)(6) motion, see Good Luck Nursing Home, Inc., 636 F.2d at 577. That proposition appears in tension with subsequent Supreme Court precedent. In Pioneer Investment Services Company, 507 U.S. at 393, the Supreme Court stated that, “[t]o justify relief under subsection (6), a party must show ‘extraordinary circumstances’ suggesting that the party is faultless in the delay.” Id. (emphasis added). “If a party is partly to blame,” the Supreme Court continued, “relief must be Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 25 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 26 of 28 21 sought . . . under subsection (1) and the party’s neglect must be excusable.” Id.7 As Defendant has already shown, Plaintiff was to blame for failing to make a legal argument that would (if Plaintiff were correct) have precluded the Government from withholding in full the Section 1809 Opinion and would have precluded the Court from finding such a withholding was legally appropriate. For these reasons, Plaintiff has not shown that it can clear the “very high bar” set for Rule 60(b)(6) motions. IV. CONCLUSION For the reasons set forth above, the Court should deny Plaintiff’s motion for reconsideration of the Court’s order granting the Government’s summary judgment motion and denying Plaintiff’s partial summary judgment motion. 7 Application of this “faultless” requirement from Pioneer in Rule 60(b)(6) cases does not appear to be uniform in this Circuit. On one hand, numerous district court decisions have applied this requirement since the Supreme Court decided Pioneer Investment Services Company, see, e.g., Lightfoot, 555 F. Supp. 2d at 71-72 (collecting cases showing that “[l]egal authority has made the fault/no fault distinction the controlling factor in determining whether extraordinary circumstances exist” in Rule 60(b)(6) cases); see also Stovell v. James, 849 F. Supp. 2d 43, 45-46 (D.D.C. 2012); Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011); Canales v. A.H.R.E., Inc., 254 F.R.D. 1, 13 (D.D.C. 2008). On the other hand, a Court of Appeals decision—without reference to Pioneer—found a Rule 60(b)(6) motion proper in a case where the newly presented fact had apparently been known to the litigant prior to judgment. See Computer Prof’ls for Soc. Responsibility, 72 F.3d at 903. Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 26 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 27 of 28 22 Dated: February 5, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ELIZABETH J. SHAPIRO Deputy Branch Director /s/ Rodney Patton RODNEY PATTON Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7320 Washington, D.C. 20044 Phone: (202) 305-7919 Fax: (202) 616-8470 E-mail: rodney.patton@usdoj.gov Counsel for Defendant Case 1:14-cv-00760-RMC Document 28 Filed 02/05/16 Page 27 of 27Case 3:16-cv-02 41-HSG Document 3 -4 Filed 10/13/16 Page 28 of 28 Exhibit D Case 3:16-cv-02041-HSG Document 32-5 Filed 10/13/16 Page 1 of 4 Bnitcd ~rates ~cnatc WASHINGTON, DC 20510 The Honorable Eric Holder Attorney General United States Department of Justice Washington, D.C. 20530 Dear Attorney General Holder: March 15, 2012 We have discussed the dangers of relying on secret interpretations of public Jaws with you on multiple occasions, both through correspondence and in person. While we know that you are generally aware of our views on thfa subject, we feel obliged to comment specifically on the Justice Department's recent attempt to seek dismissal of two lawsuits that have been filed under the Freedom of Information Act and that specifically pertain to this problem of secret law. The two lawsuits (filed by the New York Times and the American Civil Liberties Union) seek to obtain information about how the United States government has interpreted the text of the USA Patriot Act, specifically section 215 of that Act, the controversial "'business records" provision. It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or "FISA Cowi") has been acknowledged on multiple occasions by the Justice Department and other executive branch officials. We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn't know what its government thinks the law says. As we have said before, we believe that it is entirely legitimate for government agencies to keep certain information secret. Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected any more than early Americans expected George Washington to tell them his plans for observing troop movements at Yorktown. However, in a democratic society - in which the government derives its power from the consent of the people - citizens rightly expect that their government will not arbitrarily keep infom1ation from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to Case 3:16-cv-02041-HSG Document 32-5 Filed 10/13/16 Page 2 of 4 know how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don ' t think that government officials should be writing secret law. While the executive branch has worked hard to keep the government's official interpretation of the Patriot Act secret from the American public it has, to its credit, provided this information in documents submitted to Congress. However, these documents are so highly classified that most members of Congress do not have any staff who are cleared to read them. As a result, we can state with confidence that most of our colleagues in the House and Senate are unfamiliar with these documents, and that many of them would be surprised and angry to learn how the Patriot Act has been interpreted in secret. A number of the senators who are familiar with these secret legal interpretations (including the two of us) have pressed the executive branch to declassify these interpretations so that Congress and the public can have an informed debate about the proper scope of the law. We have personally raised this issue in meetings, hearings, and correspondence (both classified and unclassified) with senior officials (including you) on many occasions over the years, thus far to no avail. It was initially encouraging when the Department of Justice and the Office of the Director of National Intelligence wrote to Senator Rockefeller and Senator Wyden in August 2009 to announce the establishment of a regular process for reviewing, redacting and releasing significant opinions of the FISA Court. Two and a half years later, however, this "process" has produced literally zero results. Not a single redacted opinion has been released. The crux of the Justice Department's argument for keeping the official interpretation of the law secret is that this secrecy prevents US adversaries from understanding exactly what intelligence agencies are allowed to do. We can see how it might be tempting to latch on to this chilling logic, but we would note that it would then follow that all of America's surveillance laws should be secret, because that would make it even harder to guess how the United States government collects information. For example, when Congress passed the Foreign Intelligence Surveillance Act in 1978 it would have been useful to keep that law secret from the KGB, so that Soviet agents would not know how the FBI was al]owed to track them. But American laws should not be made public only when government officia]s find it convenient. They should be public all the time, and every American should be able to find out what their government thinks those laws mean. We recognize that this obligation to be transparent with tJ1e public can be a challenge, but avoiding that challenge by developing a secret body of law is not an acceptable solution. The Justice Department's motion to dismiss these Freedom of Information Act lawsuits argues that it is the responsibility of the executive branch to determine the best way to protect the secrecy of intelligence sources and methods. While this is indeed a determination for the executive branch to make, we are concerned that the executive branch has developed a practice of bypassing traditional checks and balances and treating these determinations as dispositive in all cases. In other words, when intelligence Case 3:16-cv-02041-HSG Document 32-5 Filed 10/13/16 Page 3 of 4 officials argue that something should stay secret, policy makers ofien seem to defer to them without carefully considering the issue themselves. We have great respect for our nation 's intelligence officers, the vast majority of whom are hard-working and dedicated professionals. But intelligence officials are specialists - it is their job to determine how to collect as much information as possible, but it is not their job to balance the need for secrecy with the public's right to know how the law is being interpreted. That responsibility rests with policy makers, and we believe that responsibility should not be delegated lightly. We would also note that in recent months we have grown increasingly skeptical about the actual value of the "intelligence collection operation" discussed in the Justice Department's recent court filing regarding the pending lawsuits. This has come as a surprise to us, as we were initially inclined to take the executive branch's assertions about the importance of this "operation" at face value. We will provide more detail about this skepticism in classified correspondence. We hope that you will reconsider the Justice Department's stance on the issue of secret legal interpretations, as we continue to believe that this stance is contrary to core principles of American democracy and will serve our nation quite poorly over the long term. Thank you for your attention to this matter. Mark Udall United States Senator Case 3:16-cv-02041-HSG Document 32-5 Filed 10/13/16 Page 4 of 4 Exhibit E Case 3:16-cv-02041-HSG Document 32-6 Filed 10/13/16 Page 1 of 4 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT Washington, D.C. Ho11oral1le Reggie D. Walton Presiding judge Honorable Dianne Feinstein United States Senate Washington, DC 20510 Dear Senator Feinstein: March 27, 2013 I am writing in response to your letter dated February 13, 2013, addressed to then- Presiding Judge John D. Bates, in which you requested that the Foreign Intelligence Surveillance Court (FISC) consider providing written summaries of its significant opinions in a manner that pennits declassification by separating the classified facts from the legal analysis. I share your view that the FISC plays a crucial role in construing the Foreign Intelligence Surveillance Act (PISA), and believe that it is essential that Congress be kept informed of significant opinio11s of the FISC that interpret the FTSA provisions. I understand that the Executive Branch provides the Intelligence and Judiciary Committees with all significant FISC opinions, albeit in classified form. I also recognize the potential benefit of better informing the public about how the FISC applies and interprets FISA - for example, by enhancing public participation in congressional deliberations. There are, however, serious obstacles that must be considered regarding your request for summaries of FISC opinions. In some circumstances, a federal court through its staff may prepare a summary of an opinion for the convenience of the public, such as a syllabus that accompanies a Supreme Court opinion. But where this practice is common, the full opinion is made equally available as well. The summary is merely a guide to the full opinion, not a means of disclosing some parts of that opinion while concealing other parts. If a summa1y is to be offered as a substitute for the full opinion, then several special concerns arise. Summarizing a judicial opinion of any length or complexity entails losing more nuanced or technical points of a court's analysis. This loss does not involve a serious risk of confusing or misleading a reader if the full opinion is also available. Without the full opinion, however, the summary is much more likely to result in misunderstanding or confusion regarding the court's decision or reasoning. Case 3:16-cv-02041-HSG Document 32-6 Filed 10/13/16 Page 2 of 4 Honorable Dianne Feinstein Page2 For FISC opinions specifically, there is also the very real problem of separating the classified facts from the legal analysis. While classification determinations are made by the Executive Branch in the first instance, the facts presented in applications to the FISC always or almost always involve classified intelligence activities, the disclosure of which could be harmful to the nation's security. As members of Congress who have seen the opinions know, most FISC opinions rest heavily on the facts presented in the particular matter before the court. Thus, in most cases, the facts and the legal analysis are so inextricably intertwined that excising the classified information from the FISC's analysis would result iu a remnant void of much or any useful meaning. Consequently, the summaries you request are unlikely, as a general matter, to serve the purpose of meaningfully infonning the public about the FISC's determinations. Your request that the FISC prepare summaries of significant interpretations of the law would present additional concerns for previously issued opinions. Article III courts cannot issue advisory opinions. For a court to revisit and refmmulate its prior reasoning outside the context of a matter actively before the court may implicate that prohibition. There are also practical considerations with a post hoc summa1y. For example, if the original opinion had been issued by a judge who is no longer serving on the FISC, another judge would be responsible for preparing the interpretive summary. Insofar as different judges may view particular points of the analysis as more or less important to an opinion as a whole, the summary may be an amalgam of the views of the issuing judge and the summarizing judge. Such procedural complications may lead to further confusion and distortion in the summaries, and imply a lack of finality to FISC opinions. Finally, there are resource considerations. The small number of judges, attorneys, and staff that comprise the FISC are fully occupied by its current caseload. Given the difficulties noted above, the effort to draft summaries of previously issued opinions would have a detrimental impact on the FISC's ability to address matters currently before the court. Rather than summaries, in a few exceptional cases FISC opinions that have contained no classified infom1ation, or a small amount of readily excisable classified information, have been made available to the public. Those matters involved the rare circumstance where a FISC decision relied either solely on an interpretation of law or where the classified facts were not inextricably intertwined with the court's analysis, so that the FISC was able to make its decisions publicly available. In fact, the FISC's Rules of Procedure provide a mechanism for a judge to request the publication of an order, opinion, or other decision. See FISC Rule 62.(a). This procedure, where appropriate, contemplates a review by the Executive Branch for the redaction of classified infonnation. Indeed, as you mention, the Executive Branch has indicated that it will seek to provide declassified opinions to the extent it may become feasible to do so. Case 3:16-cv-02041-HSG Document 32-6 Filed 10/13/16 Page 3 of 4 Honorable Dianne Feinstein Page 3 Recognizing the importance of this issue and your concerns, I have provided a copy of your letter to all of the current judges of the FISC, as well as the Foreign Intelligence Surveillance Court of Review (FISCR), and will ensure that any new judges appointed to the FISC also receive a copy of your letter. In addition, at the FISC' s upcoming semi-annual meeting in May, I will ensure that all of the judges are aware of the procedures that are available under Rule 62.(a) and encourage them to avail themselves of these procedures when appropriate. I will also encourage them to consider structuring opinions to facilitate declassification, if they believe doing so is warranted in a particular case. Realistically, however, I would not anticipate many such cases given the fact-intensive nature of FISC opinions, as described above. Of course, the FISC is also prepared to carry out its responsibilities with respect to the review process currently underway by the Executive Branch that has been detailed to you in previous correspondence. · cerely, p/5. f!ib-·· e gie B. Walton Presiding Judge, U.S. Foreign Intelligence Surveillance Court cc: Honorable Morris S. Arnold Presiding Judge, U.S. Foreign Intelligence Surveillance Court of Review The· Honorable James Clapper Director of National Intelligence The Honorable Eric H. Holder, Jr. Attorney General Identical letter sent to: Honorable Ron Wyden Honorable Mark Udall Honorable Jeff Merkley i I j. i Case 3:16-cv-02041-HSG Document 32-6 Filed 10/13/16 Page 4 of 4 Exhibit F Case 3:16-cv-02041-HSG Document 32-7 Filed 10/13/16 Page 1 of 4 U.S. Department of Justice Civil Division Federal Programs Branch Mailing Address Overnight Delivery Address P.O. Box 883 20 Massachusetts Ave., N.W. Washington, D.C. 20044 Washington, D.C. 20001 Steven Y. Bressler Tel: (202) 305-0167 Senior Counsel Fax: (202) 616-8470 Steven.Bressler@usdoj.gov August 22, 2012 VIA ECF The Honorable Yvonne Gonzalez Rogers U.S. District Judge Ronald V. Dellums Federal Building 1301 Clay Street Oakland, CA 94612 Re: Electronic Frontier Foundation v. United States Department of Justice, Case No. 11-cv-5221-YGR Dear Judge Gonzalez Rogers: Defendant the U.S. Department of Justice writes pursuant to Paragraph 9(a) of the Court’s Standing Order for Civil Cases to request that the Court hold a pre-filing conference to discuss the government’s contemplated Motion for Summary Judgment. The above-captioned civil action was brought by plaintiff the Electronic Frontier Foundation (“EFF”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking relief concerning plaintiff’s FOIA requests to defendant and its components the Federal Bureau of Investigation (“FBI”), National Security Division (“NSD”), Office of Information Policy (“OIP”), and Office of Legal Counsel (“OLC”). On June 2, 2011, plaintiff submitted FOIA requests to defendant’s components seeking certain information related to Section 215 of the USA PATRIOT ACT.1 In its Amended Complaint, plaintiff sought expedited processing of its FOIA requests and release of responsive documents. In a stipulated request endorsed by the Court (Docket Entry No. 22), the parties agreed to narrow the scope of plaintiff’s FOIA request and on a schedule for defendant’s processing and production of responsive, non-exempt documents. On July 2, 2012, defendant completed processing plaintiff’s FOIA request, as narrowed by the stipulation. Since that time, counsel for the parties have worked (and continue to work) to narrow the issues that remain in dispute. The parties have agreed, pending leave of Court, that summary judgment motions will deal with the 1 Section 215 amended the Foreign Intelligence Surveillance Act (“FISA”), Pub. L. No. 95-511, 92 Stat. 1783 (codified in 50 U.S.C. §§ 1801-1885), to authorize the FBI to apply to the Foreign Intelligence Surveillance Court (“FISC”) for an order permitting the FBI access to certain business records for foreign intelligence and international terrorism investigations. 50 U.S.C. § 1861(a)(1), (b)(2)(A). Case4:11-cv-05221-YGR Document32 Filed08/22/12 Page1 of 3Case 3:16-cv-02041-HS Document 32-7 Filed 10/13/16 Page 2 of 4 2 following categories of documents created from January 1, 2004 to June 2, 2011 and containing significant legal analysis or interpretation of Section 215: (1) legal opinions or memoranda concerning or interpreting Section 215 of the USA Patriot Act; (2) guidelines for government personnel regarding the use of Section 215; (3) reports provided to Congress by the FBI or DOJ concerning or memorializing the Executive Branch’s interpretation or use of Section 215; (4) rulings, opinions or memoranda of the FISC concerning or interpreting Section 215; and (5) legal opinions or memoranda concerning or interpreting rulings, opinions, or memoranda of the FISC interpreting Section 215. The parties have agreed that the following types of documents are excluded from further litigation at this time: (1) email responsive to Plaintiff’s FOIA requests or the above categories from the files of NSD; (2) records that are purely logistical; (3) applications and supporting documentation submitted to the FISC; (4) the operational files of the NSD Office of Intelligence and its predecessor, the Office of Intelligence Policy and Review; and (5) records that were previously processed by the FBI in response to FOIA request numbers 1017326 (by the Electronic Privacy Information Center in 2005) and 1138791 (by EFF in 2010). With respect to documents subject to the government’s forthcoming summary judgment motion, the parties have agreed that the government will provide plaintiff by September 4, 2012, with a summary of those documents that have been withheld in full by NSD or withheld in any part by FBI, OIP, and OLC. To the extent possible consistent with maintenance of the claimed exemptions, the summary will provide descriptions of categories of withheld documents and the exemptions relied on for withholding each category. Plaintiff will examine the summary and notify defendant of any documents or categories of documents which plaintiff also will agree to exclude from further litigation. The FOIA was enacted to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation omitted). However, the public’s interest in government information under FOIA is not absolute, and in the statute “Congress recognized . . . that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166-167 (1985). FOIA’s “basic purpose” reflects a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 (1989) (quoting Rose, 425 U.S. at 360-361 (1976)) (other citation omitted). FOIA is designed to achieve a “workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.” Id., 493 U.S. at 152 (citation omitted). Toward that end, FOIA incorporates “nine exemptions which a government agency may invoke to protect certain documents from public disclosure.” Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). Despite the “liberal congressional purpose” of FOIA, the Supreme Court has recognized that the statutory exemptions are intended to have “meaningful reach and application.” John Doe, 493 U.S. at 152. “A district court only has jurisdiction to compel an agency to disclose improperly withheld agency records,” i.e., records that do “not fall within an exemption.” Minier, 88 F.3d at 803 (emphasis in original). Thus, “[r]equiring an agency to disclose exempt information is not authorized by FOIA.” Id. (quoting Spurlock v. FBI, 69 F.3d 1010, 1016 (9th Cir. 1995)). FOIA actions are generally resolved through summary judgment motions pursuant to Fed. R. Civ. P. 56. See Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993). Under FOIA, courts conduct de novo review to determine whether the government properly withheld records under Case4:11-cv-05221-YGR Document32 Filed08/22/12 Page2 of 3Case 3:16-cv-02041-HS Document 32-7 Filed 10/13/16 Page 3 of 4 3 any of FOIA’s nine statutory exemptions. 5 U.S.C. § 552(a)(4)(B). The government bears the burden of justifying non-disclosure. Minier, 88 F.3d at 800. “The agency may meet its burden by submitting a detailed affidavit showing that the information ‘logically falls within the claimed exemptions.’” Id. (quoting in part Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992)). The court must accord a presumption of good faith to agency declarations submitted in support of claimed exemptions. Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). And when considering FOIA exemptions related to national security, “the district court [is] required to accord ‘substantial weight’ to [the agency’s] affidavits” as long as it is not “controverted by contrary evidence in the record or by evidence of [agency] bad faith.” Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992) (internal quotation omitted). In its contemplated motion, the government will argue that it is entitled to summary judgment because the withheld documents at issue are exempt from disclosure under FOIA. In particular, defendant anticipates that declarations by appropriate government officials will establish that many of the documents in question are classified national security information exempt from disclosure under FOIA Exemption 1, which protects records that are: “(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and (B) are in fact properly classified pursuant to Executive Order.” 5 U.S.C. § 552 (b)(1); accord, e.g., Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 144 (1981). Defendant also anticipates that its declarations will establish that some of the documents in question are protected by FOIA Exemption 3, which applies to records that are “specifically exempted from disclosure” by other federal statutes “if that statute – establishes particular criteria for withholding the information or refers to the particular types of material to be withheld.” 5 U.S.C. § 552(b)(3). Likewise, defendant anticipates that its declarations will establish that documents still sought by plaintiff are protected by FOIA Exemption 5, which applies to “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 thus protects from disclosure records that would be privileged in civil litigation under doctrines such as the deliberative process privilege and the attorney- client privilege. See United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 154 (1975); see also Maricopa Audubon Society, 108 F.3d 1082, 1092 (9th Cir. 1997). And defendant anticipates that its declarations will establish that documents still sought by plaintiff are protected by FOIA Exemption 7, which applies to a broad array of documents used for law enforcement purposes. 5 U.S.C. § 552(b)(7). Accordingly, defendant requests a pre-filing conference. The parties respectfully requests the conference be held on September 19, 2012 if convenient for the Court. Undersigned counsel is also available on September 14 and 21, 2012. Thank you for Your Honor’s consideration of this letter request. Respectfully submitted, /s/ Steven Y. Bressler ELIZABETH J. SHAPIRO STEVEN Y. BRESSLER Case4:11-cv-05221-YGR Document32 Filed08/22/12 Page3 of 3Case 3:16-cv-02041-HS Document 32-7 Filed 10/13/16 Page 4 of 4 Exhibit G Case 3:16-cv-02041-HSG Document 32-8 Filed 10/13/16 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U ni te d St at es D is tri ct C ou rt N or th er n D is tri ct o f C al ifo rn ia UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ELECTRONIC FRONTIER FOUNDATION, Plaintiff, vs. DEPARTMENT OF JUSTICE, Defendant. Case No.: 4:11-cv-05221-YGR ORDER RE: HOLDING CROSS-MOTIONS FOR SUMMARY JUDGMENT IN ABEYANCE On June 11, 2013, the Court issued an order, pursuant to the stipulation of the parties, holding its decision on the parties’ pending cross-motions for summary judgment in abeyance. (Dkt. No. 60.) The Court granted the stipulation in light of recent developments concerning release of previously classified information by the Director of National Intelligence (“DNI”) related to Section 215 of the USA PATRIOT Act of 2001, 50 U.S.C. § 1861 (“Section 215”). (See June 6, 2013 “DNI Statement On Recent Unauthorized Disclosures of Classified Information,” at http://www.odni.gov/index.php/newsroom/press-releases/191-press-releases-2013/868-dni- statement-on-recent-unauthorized-disclosures-of-classified-information.) The June 11, 2013 Order further directed the parties to submit a joint status statement no later than July 12, 2013. The Court is in receipt of the parties’ Joint Status Report. (Dkt. No. 61.) Defendant requests that the Court continue to hold its summary judgment decision in abeyance until September 6, 2013, and require nothing more than that it provide the Court with a further “status report” and “proposal for further proceedings.” Plaintiff, having agreed to the initial period of Case4:11-cv-05221-YGR Document62 Filed07/19/13 Page1 of 2Case 3:16-cv-02041-HS Document 32-8 Filed 10/13/16 Page 2 of 3 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U ni te d St at es D is tri ct C ou rt N or th er n D is tri ct o f C al ifo rn ia abeyance, now requests that the Court require Defendant to finalize its review and release of certain records, and provide a schedule for the remaining documents, no later than August 12, 2013. Having considered the Joint Status Report, for good cause shown, the Court ORDERS that Defendant submit, on or before September 4, 2013: (1) finalized classification determinations for records responsive to Plaintiff’s request for: (a) Significant opinions or orders of the FISC, and (b) Any significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency; (2) the dates by which it will release any re-classified, non-exempt documents or portions documents responsive to 1(a) and 1(b) above; (3) a schedule for declassification review of other responsive documents previously withheld but and production of those now determined by Defendant to be non-exempt; and (4) a proposed schedule for any further briefing on the cross-motions for summary judgment in light of the above, reached after meeting and conferring with Plaintiff. The Court will hold its decision on the cross-motions for summary judgment in abeyance until, at least, September 4, 2013. IT IS SO ORDERED. Date: July 19, 2013 ___________________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE Case4:11-cv-05221-YGR Document62 Filed07/19/13 Page2 of 2Case 3:16-cv-02041-HS Document 32-8 Filed 10/13/16 Page 3 of 3 [PROPOSED] ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARK RUMOLD (SBN 279060) mark@eff.org NATHAN D. CARDOZO (SBN 259097) nate@eff.org AARON MACKEY (SBN 286647) amackey@eff.org ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ELECTRONIC FRONTIER FOUNDATION, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-02041-HSG [PROPOSED] ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT Hon. Haywood S. Gilliam Jr. Hearing Date: December 15, 2016 Case 3:16-cv-02041-HSG Document 32-9 Filed 10/13/16 Page 1 of 2 16-cv-02041-HSG [PROPOSED] ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The matter came for hearing before the Court on Defendant’s Motion for Partial Summary Judgment and Plaintiff’s Cross Motion for Partial Summary Judgment. Having given full consideration to all parties’ papers and evidence, the relevant authorities, and the oral presentations of counsel, it is hereby: ORDERED that Defendant’s Motion for Partial Summary Judgment is DENIED; it is further ORDERED that Plaintiff’s Cross-Motion for Partial Summary Judgment is GRANTED; and it is further ORDERED that the Department of Justice shall, within 10 days of this Order: 1) Identify all records that are responsive to EFF’s FOIA request; and 2) Establish a schedule for the timely declassification and release of all responsive records, i.e. all significant FISC opinions. DATED: October ___, 2016 __________________________ Hon. HAYWOOD S. GILLIAM, JR. United States District Court Judge Case 3:16-cv-02041-HSG Document 32-9 Filed 10/13/16 Page 2 of 2