Case Detail

FOIA Project Annotation: Judge Richard Leon has ruled that an opinion prepared by the Justice Department's Office of Legal Counsel on behalf of the FBI is protected by Exemption 1 (national security) and Exemption 5 (deliberative process privilege). In preparation for the reauthorization of the Patriot Act, DOJ's Office of the Inspector General examined the FBI's practice of obtaining phone records without obtaining a new National Security Letter. While the OIG study was in progress the FBI asked OLC to provide legal advice concerning the practice and OLC provided an 11-page memorandum containing its legal analysis and advice. EFF requested a copy of the opinion and the agency denied the request under Exemption 1 and Exemption 5. Leon first noted that "utilizing such classified factual information to render its guidance, OLC followed its standard practice and marked as classified 'those portions of the [OLC] Opinion which reflect classified factual information provided to OLC by the FBI.'" Pointing out that "while this Court's review is de novo, our Circuit has consistently emphasized its deferential posture to the executive in FOIA cases involving national security concerns," Leon indicated that "conferring substantial weight and deference to the DOJ's declarations, I find that the Department has explained with sufficient detail why the withheld information in the OLC Opinion qualifies as 'intelligence sources or methods' and adequately described the potential harm to national security that could result from the information's public disclosure." EFF argued that "the DOJ failed to provide a detailed justification of its withholdings, tied to the particular part of the OLC Opinion to which it applied, and thus failed to sustain its burden regarding FOIA Exemption 1 on summary judgment." Leon rejected that claim, indicating that the agency "is asserting Exemption 1 only as to certain paragraphs of the OLC Opinion, which have been marked as classified in accordance with the classification markings included in the FBI's two letters to OLC requesting legal advice." He added that "the Department's submitted declarations are sufficiently specific to satisfy its burden without going so far as to disclose protected information." Turning to the deliberative process privilege claim, Leon observed that "it is apparent that the OLC Opinion is both predecisional and deliberative in nature, and thus subject to the deliberative process privilege. The OLC Opinion as described in the Department's declarations contains inter-agency material that was generated as part of a continuous process of agency decision-making, namely how to respond to the OIG's critique of the FBI's information-gathering methods in certain investigations. . .Indeed, it is not hard to imagine how disclosure of the OLC Opinion would likely interfere with the candor necessary for open discussions on the FBI's preferred course of action regarding the OIG evaluation." Leon also upheld the agency's segregability claims. He noted that "the DOJ's declarations explicated that, although only portions of the OLC Opinion were withheld under Exemption 1, the entirety of the OLC Opinion was withheld under Exemption 5, leaving nothing significant that could be disclosed in a redacted format."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 1 - Harm to national security

Date Filed	Doc #	Docket Text
2011-05-19	1	COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616038972) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 05/20/2011)
2011-05-19		SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 05/20/2011)
2011-05-19	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ELECTRONIC FRONTIER FOUNDATION (jf, ) (Entered: 05/20/2011)
2011-06-10	3	STANDING ORDER. Signed by Judge Richard J. Leon on 6/10/2011. (lcrjl3) (Entered: 06/10/2011)
2011-06-20	4	ANSWER to 1 Complaint by DEPARTMENT OF JUSTICE.(Layton, Elisabeth) (Entered: 06/20/2011)
2011-07-20	5	MEET AND CONFER STATEMENT. (Layton, Elisabeth) (Entered: 07/20/2011)
2011-08-04	6	ERRATA Proposed Order by DEPARTMENT OF JUSTICE 5 Meet and Confer Statement. (Layton, Elisabeth) (Entered: 08/04/2011)
2011-08-08	7	ORDER : Defendant's Motion for Summary Judgment due by 10/7/2011. Plaintiff's Opposition thereto and Cross-Motion for Summary Judgment due by 11/7/2011. Defendant's Reply and Opposition due by 11/21/2011. Plaintiff's Reply by 12/5/2011. Signed by Judge Richard J. Leon on 8/5/2011. (see order) (kc) (Entered: 08/08/2011)
2011-09-30	8	Unopposed MOTION for Extension of Time to File Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 09/30/2011)
2011-10-07	9	ORDER granting 8 Defendant's Motion for Extension of Time. Defendant's Motion for Summary Judgment is due by 11/4/2011; Plaintiff's Opposition and Cross-Motion is due by 12/7/2011; Defendant's Reply to Summary Judgment and Opposition to the Cross-Motion is due by 12/21/2011; Plaintiff's Reply to the Cross-Motion is due by 1/6/2012. Signed by Judge Richard J. Leon on 10/3/2011. (jth) (Entered: 10/07/2011)
2011-11-04	10	Unopposed MOTION for Extension of Time to File Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 11/04/2011)
2011-11-07		MINUTE ORDER granting 10 Unopposed Motion for Extension of Time to File Defendant's Motion for Summary Judgment. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 11/7/2011. (lcrjl3) (Entered: 11/07/2011)
2011-11-10	11	MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration of David M. Hardy, # 4 Declaration of Paul P. Colborn, # 5 Text of Proposed Order)(Layton, Elisabeth) (Entered: 11/10/2011)
2011-12-13	12	NOTICE OF FILING CORRECTED DECLARATION OF DAVID M. HARDY by DEPARTMENT OF JUSTICE re 11 MOTION for Summary Judgment (Attachments: # 1 Errata Corrected Declaration of David M. Hardy)(Layton, Elisabeth) (Entered: 12/13/2011)
2011-12-13	13	Memorandum in opposition to re 11 MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts (Response), # 4 Text of Proposed Order)(Sobel, David) (Entered: 12/13/2011)
2011-12-13	14	Cross MOTION for Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 12/13/2011)
2011-12-19	15	Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment, 14 Cross MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 12/19/2011)
2011-12-27		MINUTE ORDER granting 15 Unopposed Motion for Extension of Time to File Response. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 12/27/11.(lcrjl3) (Entered: 12/27/2011)
2011-12-28		Set/Reset Deadlines: Defendant's Reply to the Motion for Summary Judgment and Response to Plaintiff's Cross Motion is due by 1/9/2012. Plaintiff's Reply to the Cross Motion is due by 1/25/2012. (jth) (Entered: 12/28/2011)
2012-01-09	16	Unopposed MOTION for Extension of Time to File Defendant's Opposition To Plaintiff's Cross-Motion For Summary Judgment And Reply In Support Of Defendant's Motion For Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Layton, Elisabeth) (Entered: 01/09/2012)
2012-01-10	17	REPLY to opposition to motion re 11 MOTION for Summary Judgment, filed by DEPARTMENT OF JUSTICE. (Layton, Elisabeth) Modified link on 1/11/2012 (znmw, ). (Entered: 01/10/2012)
2012-01-10	18	Memorandum in opposition to re 14 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (See Docket Entry 17 to view document. Counsel is reminded to file a combined reply and opposition as two separate docket entries in future). (znmw, ) (Entered: 01/11/2012)
2012-01-11		MINUTE ORDER granting 16 Unopposed Motion for Extension of Time to File Defendant's Opposition. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 01/11/12. (lcrjl3) (Entered: 01/11/2012)
2012-01-24	19	Consent MOTION for Extension of Time to File Response/Reply (Two Days) by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 01/24/2012)
2012-01-27		MINUTE ORDER granting 19 Consent Motion for Extension of Time to File Response/Reply. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 1/27/2012. (lcrjl3) (Entered: 01/27/2012)
2012-01-30	20	REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sobel, David) (Entered: 01/30/2012)
2012-02-07	21	NOTICE OF SUPPLEMENTAL AUTHORITY by ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 02/07/2012)
2012-09-21	22	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 9/21/2012. (kc ) (Entered: 09/21/2012)
2012-09-21	23	ORDER, For the reasons set forth in the Memorandum Opinion entered this date, it is this 21st day of September, 2012, hereby ORDERED that defendant's Motion 11 for Summary Judgment is GRANTED; it is further ORDERED that plaintiff's Cross-Motion 14 for Summary Judgment is DENIED. Signed by Judge Richard J. Leon on 9/21/2012. (see order) (kc ) (Entered: 09/21/2012)
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