Case Detail

FOIA Project Annotation: A federal court in California has ruled that the requirement in Section 402 of the Patriot Act mandating the government to provide declassified versions of certain Foreign Intelligence Surveillance Act Court opinions does not provide an enforceable right under the FOIA allowing requesters to force the government to conduct the necessary declassification review in response to a FOIA request. EFF submitted requests to the Department of Justice pertaining to allegations that the government intelligence agencies were requiring vendors like Apple to provide access to encrypted cellphone data. To explore the issue, EFF requested FISC opinions interpreting certain specific provisions of the Patriot Act. The agency located 79 opinions, released 73 of them in part or in full, but withheld six opinions under Exemption 1 (national security) and Exemption 3 (other statutes). EFF argued that the declassification requirement in Section 402 meant that to invoke the exemptions it had to go through a declassification review. Ruling in favor of the government's argument that EFF did not have standing to enforce Section 402, Judge Haywood Gilliam analogized the situation to Minier v. CIA, 88 F. 3d 796 (9th Cir. 1996), in which the Ninth Circuit rejected the claim that the disclosure standards under the JFK Assassination Records Act could be enforced through a FOIA request. Gilliam noted that "absent clear evidence that Congress intended Section 402 to be applied when reviewing FOIA exemptions, the Court will not impute such an intent to hybridize two statutory schemes." He also pointed out the difference between the statutory schemes â€" the FOIA exemptions applied where disclosure would harm an interest protected by the exemptions while "the unclassified summaries, by contrast, require a statement by the Attorney General that summarizes the actual construction or interpretation of a law and the description of the context, which are not required under FOIA. The Court agrees with Defendant that using FOIA to enforce Section 402 would require the Court to impose remedies outside of FOIA's requirements." Turning to the exemptions, Gilliam found DOJ had shown that the six opinions were protected under both exemptions. He indicated that the agency's affidavit "does not attempt to categorize distinct information into a single general justification, but gives thorough explanations demonstrating how national security could be compromised if the information is disclosed.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Invasion of privacy, Exemption 7(E) - Prosecutorial guidelines - Risk of circumvention

Date Filed	Doc #	Docket Text
2016-04-19	1	COMPLAINT for Injunctive Relief for Violation of the Freedom of Information Act, 5 U.S.C. Section 552 against United States Department of Justice, (Filing Fee: $400.00, receipt number 0971-10381690). Filed by Electronic Frontier Foundation. (Attachments: #(1) Civil Cover Sheet) (Rumold, Mark) (Filed on 4/19/2016) (Entered: 04/19/2016)
2016-04-19	2	Proposed Summons. (Rumold, Mark) (Filed on 4/19/2016) (Entered: 04/19/2016)
2016-04-19	3	Certificate of Interested Entities or Parties filed by Electronic Frontier Foundation (Rumold, Mark) (Filed on 4/19/2016) (Entered: 04/19/2016)
2016-04-19	4	NOTICE of Appearance by Aaron David Mackey (Mackey, Aaron) (Filed on 4/19/2016) (Entered: 04/19/2016)
2016-04-19	5	NOTICE of Appearance by Nathan Daniel Cardozo (Cardozo, Nathan) (Filed on 4/19/2016) (Entered: 04/19/2016)
2016-04-19	6	Case assigned to Magistrate Judge Sallie Kim. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. by 5/3/2016. (cjlS, COURT STAFF) (Filed on 4/19/2016) (Entered: 04/19/2016)
2016-04-21	7	Initial Case Management Scheduling Order with ADR Deadlines: Joint Case Management Statement due by 7/20/2016. Initial Case Management Conference set for 7/27/2016 at 1:30 PM in Courtroom A, 15th Floor, San Francisco. (Attachments: #(1) SK Civil Standing Order, #(2) Civil Standing Order for All Judges) (tnS) (Filed on 4/21/2016) (Entered: 04/21/2016)
2016-04-21	8	Summons Issued as to Defendant United States Department of Justice. (tnS) (Filed on 4/21/2016) (Entered: 04/21/2016)
2016-05-02	9	SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. United States Department of Justice served on 4/22/2016, answer due 5/23/2016. (Rumold, Mark) (Filed on 5/2/2016) (Entered: 05/02/2016)
2016-05-02	10	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Electronic Frontier Foundation.. (Rumold, Mark) (Filed on 5/2/2016) (Entered: 05/02/2016)
2016-05-23	11	NOTICE of Appearance by Julia Alexandra Berman (Berman, Julia) (Filed on 5/23/2016) (Entered: 05/23/2016)
2016-05-23	12	ANSWER to Complaint filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Berman, Julia) (Filed on 5/23/2016) (Entered: 05/23/2016)
2016-05-25	13	CLERK'S NOTICE Re: Consent or Declination: Defendant shall file a consent or declination to proceed before a magistrate judge by 6/8/2016. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (mklS, COURT STAFF) (Filed on 5/25/2016) (Entered: 05/25/2016)
2016-05-26	14	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by United States Department of Justice.. (Patton, Rodney) (Filed on 5/26/2016) (Entered: 05/26/2016)
2016-05-26	15	CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned. ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED. This is a text only docket entry; there is no document associated with this notice. (mklS, COURT STAFF) (Filed on 5/26/2016) (Entered: 05/26/2016)
2016-05-27	16	ORDER, Case reassigned to Hon. Haywood S Gilliam, Jr. Magistrate Judge Sallie Kim no longer assigned to the case.. Signed by Executive Committee on 5/27/16. (ha, COURT STAFF) (Filed on 5/27/2016) (Entered: 05/27/2016)
2016-06-02	17	CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE FOR REASSIGNED CIVIL CASE. Notice is hereby given that a Case Management Conference has been set for August 2, 2016, before Judge Haywood S. Gilliam, Jr., at 2:00 p.m., in Courtroom 10, 19th Floor, 450 Golden Gate Avenue, San Francisco, CA. Case Management Statement due by July 26, 2016. (This is a text only docket entry, there is no document associated with this notice.) (ndrS, COURT STAFF) (Filed on 6/2/2016) (Entered: 06/02/2016)
2016-06-06	18	STIPULATION WITH PROPOSED ORDER filed by United States Department of Justice. (Patton, Rodney) (Filed on 6/6/2016) (Entered: 06/06/2016)
2016-06-06		Electronic filing error. Document contains incorrect Case Number and Judge's Initials. Please re-file in its entirety. Re: 18 STIPULATION WITH PROPOSED ORDER filed by United States Department of Justice (dtmS, COURT STAFF) (Filed on 6/6/2016) (Entered: 06/06/2016)
2016-07-15	19	ADR Clerk's Notice re: Non-Compliance with Court Order (ewh, COURT STAFF) (Filed on 7/15/2016) (Entered: 07/15/2016)
2016-07-15	20	ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Mackey, Aaron) (Filed on 7/15/2016) (Entered: 07/15/2016)
2016-07-15	21	NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Mackey, Aaron) (Filed on 7/15/2016) (Entered: 07/15/2016)
2016-07-15	22	ADR Clerk's Notice Setting ADR Phone Conference on July 28, 2016 at 11:00 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 7/15/2016) (Entered: 07/15/2016)
2016-07-26	23	Joint Case Management Conference Statement filed by United States Department of Justice. (Berman, Julia) (Filed on 7/26/2016) (Entered: 07/26/2016)
2016-07-28	24	ADR Remark: ADR Phone Conference held on 7/28/2016 with Tamara Lange. (cmf, COURT STAFF) (Filed on 7/28/2016) (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 07/28/2016)
2016-08-01	25	STIPULATION WITH [PROPOSED] ORDER to Set Briefing Schedule and Vacate Case Management Conference filed by Electronic Frontier Foundation. (Mackey, Aaron) (Filed on 8/1/2016) (Entered: 08/01/2016)
2016-08-02	26	ORDER by Judge Haywood S. Gilliam, Jr. Granting 25 Stipulation. (ndrS, COURT STAFF) (Filed on 8/2/2016) (Entered: 08/02/2016)
2016-08-02		Set Deadlines/Hearing Pursuant to Docket No. 26 : Motions due by 9/22/2016; Responses / Cross Motions due by 10/13/2016; Replies due by 11/3/2016; Replies due by 11/17/2016; Motion Hearing set for 12/15/2016 02:00 PM before Hon. Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 8/2/2016) (Entered: 08/02/2016)
2016-09-20	27	Defendant's Unopposed Administrative Motion To Modify Briefing Schedule to Provide for Cross-Motions For Partial Summary Judgment. Responses due by 9/26/2016. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 9/20/2016) Modified on 9/21/2016 (pdy, COURT STAFF). (Entered: 09/20/2016)
2016-09-22	28	ORDER by Hon. Haywood S. Gilliam, Jr. GRANTING 27 Defendant's Unopposed Administrative Motion to Modify Briefing Schedule. In light of the fact that the cross-motions for partial summary judgment will only address the March 7, 2016, FOIA request, the parties are DIRECTED to meet and confer regarding the number of pages of briefing realistically needed to address this sole issue. The parties shall submit a joint stipulation proposing substantially shorter page limits for the briefs related to their cross-motions for partial summary judgment by September 28, 2016. (This is a text-only docket entry; there is no document associated with this entry.)(hsglc2S, COURT STAFF) (Filed on 9/22/2016) (Entered: 09/22/2016)
2016-09-22	29	MOTION for Summary Judgment (Partial) filed by United States Department of Justice. Motion Hearing set for 12/15/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 10/13/2016. Replies due by 11/3/2016. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Berman, Julia) (Filed on 9/22/2016) (Entered: 09/22/2016)
2016-09-28	30	STIPULATION WITH PROPOSED ORDER Regarding Page Limits on Briefs filed by United States Department of Justice. (Patton, Rodney) (Filed on 9/28/2016) (Entered: 09/28/2016)
2016-09-29		Remark re 30 Stipulation: REMINDER to include Judge's initials following the case number on your documents. This is a text only entry, there is no document associated with this entry. (ecgS, COURT STAFF) (Filed on 9/29/2016) (Entered: 09/29/2016)
2016-09-29	31	ORDER by Judge Haywood S. Gilliam, Jr. Granting 30 Stipulation Regarding Page Limits on Briefs. (ndrS, COURT STAFF) (Filed on 9/29/2016) (Entered: 09/29/2016)
2016-10-13	32	Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Partial Summary Judgment filed by Electronic Frontier Foundation. Motion Hearing set for 12/15/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 11/3/2016. Replies due by 11/17/2016. (Attachments: # 1 Declaration of Mark Rumold, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Proposed Order)(Rumold, Mark) (Filed on 10/13/2016) (Entered: 10/13/2016)
2016-11-03	33	OPPOSITION/RESPONSE (re 32 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Partial Summary Judgment ) filed by United States Department of Justice. (Attachments: # 1 Exhibit 1 , # 2 Exhibit 2 , # 3 Proposed Order)(Patton, Rodney) (Filed on 11/3/2016) Modified on 11/4/2016 (ecgS, COURT STAFF). (Entered: 11/03/2016)
2016-11-07	34	STATUS REPORT by United States Department of Justice. (Patton, Rodney) (Filed on 11/7/2016) (Entered: 11/07/2016)
2016-11-14	35	STIPULATION WITH PROPOSED ORDER filed by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 11/14/2016) (Entered: 11/14/2016)
2016-11-14	36	ORDER by Judge Haywood S. Gilliam, Jr. Granting 35 Stipulation. (ndrS, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/14/2016)
2016-11-14		Electronic filing error. Re: 35 STIPULATION WITH PROPOSED ORDER Judge Gilliam Jr.'s signature line is as follows: Hon. Haywood S. Gilliam, Jr. United States District Judge Counsel need not re-file document, but should reference Judge Gilliam Jr.'s suffix in future filings. This is a text only docket entry. There is no document associated with this entry. [err400] (ecgS, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/14/2016)
2016-11-23	37	STIPULATION WITH PROPOSED ORDER to Extend Deadline for Reply re 32 Cross Motion for Summary Judgment filed by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 11/23/2016) Modified on 11/28/2016 (ecgS, COURT STAFF). (Entered: 11/23/2016)
2016-11-28		Electronic filing error. Document not properly linked. [err102] Re: 37 STIPULATION WITH PROPOSED ORDER filed by Electronic Frontier Foundation. Corrected by Clerk's Office. No further action is necessary. (ecgS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
2016-11-28	38	ORDER by Judge Haywood S. Gilliam, Jr. Granting 37 Stipulation to Extend Deadline for Reply re 32 Cross Motion for Summary Judgment. (ndrS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
2016-11-28		Reset Deadline Pursuant to Docket No. 38 as to 32 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Partial Summary Judgment : Replies due by 12/1/2016. (ndrS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
2016-12-01	39	STIPULATION WITH PROPOSED ORDER to Stay Briefing, Vacate Hearing for Cross-Motions for Summary Judgment filed by Electronic Frontier Foundation. (Rumold, Mark) (Filed on 12/1/2016) Modified on 12/1/2016 (ecgS, COURT STAFF). (Entered: 12/01/2016)
2016-12-02	40	ORDER by Judge Haywood S. Gilliam, Jr. Granting 39 Stipulation to Stay Briefing, Vacate Hearing for Cross-Motions for Summary Judgment. Joint Status Report due by 12/15/2016.. (ndrS, COURT STAFF) (Filed on 12/2/2016) (Entered: 12/02/2016)
2016-12-02		Set Deadline Pursuant to Docket No. 40 : Joint Status Report due by 1/30/2017. (ndrS, COURT STAFF) (Filed on 12/2/2016) (Entered: 12/02/2016)
2016-12-15	41	JOINT STATUS REPORT by United States Department of Justice. (Patton, Rodney) (Filed on 12/15/2016) Modified on 12/16/2016 (als, COURT STAFF). (Entered: 12/15/2016)
2017-01-30	42	STATUS REPORT By Both Parties Filed by United States Department of Justice. (Patton, Rodney) (Filed on 1/30/2017) (Entered: 01/30/2017)
2017-02-14	43	ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING the parties to file a joint status report of no more than five pages by April 17, 2017. (This is a text-only docket entry; there is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 2/14/2017) (Entered: 02/14/2017)
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