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Case TitleElectronic Frontier Foundation v. Department of Justice
DistrictNorthern District of California
CitySan Francisco
Case Number3:2015cv03186
Date Filed2015-07-09
Date ClosedOpen
JudgeMagistrate Judge Maria-Elena James
PlaintiffElectronic Frontier Foundation
Case DescriptionEFF submitted a FOIA request to the DEA for records about the Hemisphere Program, which places AT&T employees within law enforcement agencies. EFF also requested expedited processing. The agency acknowledged receipt of the request and asked EFF to narrow the scope of its request. EFF narrowed the scope of the request. DEA located 308 responsive pages, withholding 132 pages in full and redacting the remaining pages. The agency claimed the redactions were appropriate under Exemption 5 (privileges), Exemption 6 (invasion of privacy) and Exemption 7 (law enforcement records). EFF appealed the agency's denial and after hearing nothing further from the agency, EFF filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Department of Justice
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [17]
Opinion/Order [31]
Opinion/Order [33]
Opinion/Order [48]
FOIA Project Annotation: A federal court in California has ruled that the DEA's claims under Exemption 5 (privileges) and Exemption 7 (law enforcement records) are insufficiently detailed to grant summary judgment. As a result, Magistrate Judge Maria-Elena James decided to conduct an in camera review of its Exemption 7(E) (investigative methods and techniques) and Exemption 5 claims. The case involved a request by EFF for records concerning the Hemisphere program, a partnership between AT&T and law enforcement agencies that allows law enforcement agencies to access call detail records and conduct analysis and data mining of those records. The existence of the program had been revealed by the New York Times in 2013 and had prompted requests and subsequent litigation by EPIC as well as EFF. James noted that Judge Emmet Sullivan had issued an opinion in the EPIC litigation in June 2016, but that the litigation was still ongoing and under review. She pointed out, that, in some cases, DEA had applied different exemptions to the same documents at issue in the EFF case and those in the EPIC case. While Sullivan had accepted the agency's attorney-client privilege claims, James found that "the Government is essentially asking the Court to presume that because it uses the world 'subpoenas' and states that attorneys wrote or received emails, these documents therefore reveal attorney-client communications of a confidential nature. Merely reiterating the elements of the privilege, however, does not satisfy the Government's burden of establishing the privilege applies to this document." She rejected the agency's claim that a draft memo from the Office of Chief Counsel was privileged legal advice. Instead, she pointed out that "the Government does not articulate why this information is confidential or contains legal advice. While it asserts that this document contains 'confidential legal advice,' again, this merely states the element without explaining the basis of that confidentiality." Explaining the government's burden to show the applicability of the attorney-client privilege, James indicated that "the Court is not asking the Government to make a herculean effort, merely something beyond regurgitation of the elements." James found the agency's attorney work-product privilege claim inadequate as well. She noted that "the Government merely recites the elements necessary to establish the privilege, but it does not explain why they are met, such as explaining why these particular documents relate to some anticipated litigation." James found the same lack of explanation for the agency's claims of the deliberative process privilege. She noted that "the Government does not explain how the disclosure of these documents would affect its deliberative process by preventing or discouraging DEA employees or affiliates from giving their honest opinions, recommendations, or suggestions on how to develop policy decisions." Turning to Exemption 7, James found the agency had failed to show that AT&T and other providers were promised confidentiality under Exemption 7(D)(confidential sources). The agency had withheld information related to state and local governments, private companies, and other sorts of agencies under Exemption 7(E). Finding the agency's justification insufficient, James observed that "while it is tempting to make assumptions as to why the Government believes such information is protected, the Government ultimately has not provided the Court with enough support to be able to determine on a de novo basis whether the Government properly withheld these documents."
Issues: Exemption 5 - Privileges, Exemption 7(E) - Investigative methods or techniques, Exemption 7(D) - Confidential sources
Opinion/Order [51]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-07-091COMPLAINT for Injunctive Relief against Department of Justice ( Filing fee $ 400, receipt number 0971-9666529.). Filed byElectronic Frontier Foundation. (Attachments: # 1 Civil Cover Sheet)(Fakhoury, Hanni) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-092Proposed Summons. (Fakhoury, Hanni) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-093Certificate of Interested Entities by Electronic Frontier Foundation (Fakhoury, Hanni) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-094Case assigned to Magistrate Judge Maria-Elena James. 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. (sv, COURT STAFF) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-095Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/1/2015. Case Management Conference set for 10/8/2015 10:00 AM. (hdjS, COURT STAFF) (Filed on 7/9/2015) (Entered: 07/10/2015)
2015-07-106Summons Issued as to Department of Justice, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 7/10/2015) (Entered: 07/10/2015)
2015-07-137Summons Issued as to Department of Justice, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 7/13/2015) (Entered: 07/13/2015)
2015-07-138CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Electronic Frontier Foundation.. (Fakhoury, Hanni) (Filed on 7/13/2015) (Entered: 07/13/2015)
2015-07-179SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. Department of Justice served on 7/14/2015, answer due 8/13/2015. (Fakhoury, Hanni) (Filed on 7/17/2015) (Entered: 07/17/2015)
2015-08-1110ANSWER to Complaint byDepartment of Justice. (Scharf, James) (Filed on 8/11/2015) (Entered: 08/11/2015)
2015-08-1111CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Department of Justice.. (Scharf, James) (Filed on 8/11/2015) (Entered: 08/11/2015)
2015-09-1712ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options by Party and Counsel (Fakhoury, Hanni) (Filed on 9/17/2015) (Entered: 09/17/2015)
2015-09-1713NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Fakhoury, Hanni) (Filed on 9/17/2015) (Entered: 09/17/2015)
2015-09-1714ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Scharf, James) (Filed on 9/17/2015) (Entered: 09/17/2015)
2015-09-2315ADR Clerk's Notice Setting ADR Phone Conference on Monday, October 5, 2015 at 2:00 PM Pacific time.. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 9/23/2015) (Entered: 09/23/2015)
2015-09-2916JOINT CASE MANAGEMENT STATEMENT filed by Department of Justice. (Scharf, James) (Filed on 9/29/2015) (Entered: 09/29/2015)
2015-09-2917CASE MANAGEMENT ORDER: Defendant's Summary Judgment Motion due by 2/18/2016 Plaintiff's Cross Motion due by 3/17/2016 Motion Hearing set for 5/5/2016 Signed by Judge Maria-Elena James on 9/29/2015. (cdnS, COURT STAFF) (Filed on 9/29/2015) (Entered: 09/29/2015)
2015-10-01ADR Remark: In light of the case management conference order issued on September 29, 2015, 17 the ADR phone conference that was scheduled on 10/5/2015 at 2:00 PM is off calendar. (af, COURT STAFF) (Filed on 10/1/2015) (Entered: 10/01/2015)
2015-10-2818NOTICE of Change In Counsel by Hanni Meena Fakhoury (Fakhoury, Hanni) (Filed on 10/28/2015) (Entered: 10/28/2015)
2016-02-1819MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Department of Justice. Motion Hearing set for 5/5/2016 10:00 AM before Magistrate Judge Maria-Elena James. Responses due by 3/17/2016. Replies due by 3/24/2016. (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-02-1820Declaration of JAMES A. SCHARF in Support of 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT DECLARATION OF JAMES A. SCHARF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Related document(s) 19 ) (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-02-1821Declaration of KATHERINE L. MYRICK in Support of 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Attachments: # 1 Exhibit EXHIBITS "A" TO "N")(Related document(s) 19 ) (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-02-1822EXHIBITS re 21 Declaration in Support, 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT EXHIBIT "O" TO DECLARATION OF KATHERINE L. MYRICK IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Related document(s) 21 , 19 ) (Scharf, James) (Filed on 2/18/2016) (Entered: 02/18/2016)
2016-03-1723Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Electronic Frontier Foundation. Motion Hearing set for 5/5/2016 10:00 AM in Courtroom B, 15th Floor, San Francisco before Magistrate Judge Maria-Elena James. Responses due by 4/7/2016. Replies due by 4/21/2016. (Attachments: # 1 Declaration of Jennifer Lynch, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Proposed Order)(Lynch, Jennifer) (Filed on 3/17/2016) (Entered: 03/17/2016)
2016-03-2924ORDER Continuing Hearing on Motions 19 Defendant's Motion for Summary Judgment, 23 Plaintiff's Cross Motion for Summary Judgment: Motion Hearing set for 5/19/2016 10:00 AM before Magistrate Judge Maria-Elena James. Signed by Judge Maria-Elena James on 3/29/2016. (cdnS, COURT STAFF) (Filed on 3/29/2016) (Entered: 03/29/2016)
2016-04-0725REPLY (re 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment ) DEFENDANT'S OPPOSITION TO PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byDepartment of Justice. (Scharf, James) (Filed on 4/7/2016) (Entered: 04/07/2016)
2016-04-0726Declaration of KATHERINE L. MYRICK in Support of 25 Reply to Opposition/Response, filed byDepartment of Justice. (Related document(s) 25 ) (Scharf, James) (Filed on 4/7/2016) (Entered: 04/07/2016)
2016-04-1227NOTICE of Substitution of Counsel by Aaron David Mackey (Mackey, Aaron) (Filed on 4/12/2016) (Entered: 04/12/2016)
2016-04-2028MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971-10387040.) filed by Electronic Frontier Foundation. (Attachments: # 1 Declaration of Adam Schwartz)(Schwartz, Adam) (Filed on 4/20/2016) (Entered: 04/20/2016)
2016-04-2129ORDER by Magistrate Judge Maria-Elena James granting 28 Motion for Pro Hac Vice re Adam D. Schwartz. (rmm2S, COURT STAFF) (Filed on 4/21/2016) (Entered: 04/21/2016)
2016-04-2130REPLY (re 23 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment ) filed byElectronic Frontier Foundation. (Mackey, Aaron) (Filed on 4/21/2016) (Entered: 04/21/2016)
2016-05-0331REQUEST for Clarification; Joint Response due by 5/11/2016. Signed by Judge Maria-Elena James on 5/3/2016. (mejlc2S, COURT STAFF) (Filed on 5/3/2016) (Entered: 05/03/2016)
2016-05-1032RESPONSE to re 31 Order Requesting Clarification by Electronic Frontier Foundation. (Schwartz, Adam) (Filed on 5/10/2016) (Entered: 05/10/2016)
2016-05-1733ORDER Vacating Hearing and Ordering Supplemental Briefing; supplemental briefs due by 6/1/2016. Responses due by 6/15/2016. Signed by Judge Maria-Elena James on 5/16/2016. (mejlc2S, COURT STAFF) (Filed on 5/17/2016) (Entered: 05/17/2016)
2016-06-0134Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order DEFENDANT'S SUPPLEMENTAL BRIEF RE HAMDAN V. UNITED STATES DEPARTMENT OF JUSTICE filed byUnited States Department of Justice. (Related document(s) 33 ) (Scharf, James) (Filed on 6/1/2016) (Entered: 06/01/2016)
2016-06-0135Declaration of KATHERINE L. MYRICK in Support of 34 Supplemental Brief, 33 Terminate Hearings, Set Deadlines, Order SECOND SUPPLEMENTAL DECLARATION OF KATHERINE L. MYRICK RE HAMDAN V. U.S. DEP'T OF JUSTICE and IN FURTHER SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byUnited States Department of Justice. (Related document(s) 34 , 33 ) (Scharf, James) (Filed on 6/1/2016) (Entered: 06/01/2016)
2016-06-0136Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order filed byElectronic Frontier Foundation. (Related document(s) 33 ) (Schwartz, Adam) (Filed on 6/1/2016) (Entered: 06/01/2016)
2016-06-1537Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order DEFENDANT'S SUPPLEMENTAL REPLY BRIEF RE HAMDAN V. UNITED STATES DEPARTMENT OF JUSTICE filed byUnited States Department of Justice. (Related document(s) 33 ) (Scharf, James) (Filed on 6/15/2016) (Entered: 06/15/2016)
2016-06-1538Supplemental Brief re 33 Terminate Hearings, Set Deadlines, Order Plaintiff's Supplemental Reply Brief filed byElectronic Frontier Foundation. (Related document(s) 33 ) (Schwartz, Adam) (Filed on 6/15/2016) (Entered: 06/15/2016)
2016-06-2739Statement DEFENDANT'S STATEMENT OF RECENT DECISION by United States Department of Justice. (Scharf, James) (Filed on 6/27/2016) (Entered: 06/27/2016)
2016-09-3040ORDER for Supplemental Responses. Responses due by 10/14/2016; Replies due by 10/28/2016. Signed by Judge Maria-Elena James on 9/30/2016. (mejlc2S, COURT STAFF) (Filed on 9/30/2016) (Entered: 09/30/2016)
2016-10-0741STIPULATION WITH PROPOSED ORDER re 40 Order, Set Deadlines Stipulation and [Proposed] Order Modifying Order For Supplemental Responses filed by United States Department of Justice. (Scharf, James) (Filed on 10/7/2016) (Entered: 10/07/2016)
2016-10-0742Order granting 41 Stipulation. Signed by Maria-Elena James. (mejlc2S, COURT STAFF) (Filed on 10/7/2016) (Entered: 10/07/2016)
2016-10-3143Declaration of Katherine L. Myrick in Support of 19 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT and re COURT ORDER for SUPPLEMENTAL RESPONSES 40 filed byUnited States Department of Justice. (Attachments: # 1 Exhibit A - FOIA Request, # 2 Exhibit B - Comparison Chart, # 3 Exhibit C - Vaughn Index)(Related document(s) 19 ) (Scharf, James) (Filed on 10/31/2016) (Entered: 10/31/2016)
2016-11-0444Supplemental Brief re 42 Order on Stipulation, 40 Order, Set Deadlines filed byUnited States Department of Justice. (Related document(s) 42 , 40 ) (Scharf, James) (Filed on 11/4/2016) (Entered: 11/04/2016)
2016-11-0445Supplemental Brief re 42 Order on Stipulation, 40 Order, Set Deadlines filed byElectronic Frontier Foundation. (Related document(s) 42 , 40 ) (Schwartz, Adam) (Filed on 11/4/2016) (Entered: 11/04/2016)
2016-11-1846Supplemental Brief re 45 Supplemental Brief by Plaintiff filed byUnited States Department of Justice. (Related document(s) 45 ) (Scharf, James) (Filed on 11/18/2016) (Entered: 11/18/2016)
2016-11-1847Supplemental Brief re 44 Supplemental Brief of Defendant filed byElectronic Frontier Foundation. (Related document(s) 44 ) (Schwartz, Adam) (Filed on 11/18/2016) (Entered: 11/18/2016)
2016-12-2248ORDER by Judge Maria-Elena James granting in part and denying in part 19 Motion for Summary Judgment; granting in part and denying in part 23 Motion for Summary Judgment. (mejlc2S, COURT STAFF) (Filed on 12/22/2016) (Entered: 12/22/2016)
2017-01-2349NOTICE by United States Department of Justice re 48 Order on Motion for Summary Judgment, Notice of Lodging of Copies of Documents Withheld for In Camera Review (Scharf, James) (Filed on 1/23/2017) (Entered: 01/23/2017)
2017-01-2350RESPONSE to re 49 Notice (Other) /Opposition to DOJ Submission and DOJ Request for Reconsideration by Electronic Frontier Foundation. (Mackey, Aaron) (Filed on 1/23/2017) (Entered: 01/23/2017)
2018-07-0251Order re: In Camera Review. Signed by Judge Maria-Elena James on 7/2/2018. (cdnS, COURT STAFF) (Filed on 7/2/2018) (Entered: 07/02/2018)
2018-07-1152ADMINISTRATIVE MOTION to Permit Defendant to Take 60 Days from the Date of the Order Re: In Camera Review to Comply or Appeal re 51 Order (Unopposed by Plaintiff) with Proposed Order filed by United States Department of Justice. Responses due by 7/16/2018. (Scharf, James) (Filed on 7/11/2018) (Entered: 07/11/2018)
2018-07-1153ORDER by Judge Maria-Elena James granting 52 Administrative Motion to Permit Defendant to Take 60 Days from the Date of the Order Re: In Camera Review to Comply or Appeal. (cdnS, COURT STAFF) (Filed on 7/11/2018) (Entered: 07/11/2018)
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