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Case TitleLEVINTHAL et al v. FEDERAL ELECTION COMMISSION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv01624
Date Filed2015-10-05
Date Closed2016-11-23
JudgeJudge Amit P. Mehta
PlaintiffDAVE LEVINTHAL
PlaintiffCENTER FOR PUBLIC INTEGRITY
Case DescriptionDave Levinthal, an investigative reporter for the Center for Public Integrity, submitted a FOIA request to the Federal Election Commission for a copy of a 2015 report by the National Institute of Standards and Technology pertaining to the FEC's operations. Levinthal also requested any records related to the NIST report. The agency acknowledged receipt of the request, but did not respond within the statutory time limit. Levinthal filed an administrative appeal which was denied. He then filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantFEDERAL ELECTION COMMISSION
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [20]
FOIA Project Annotation: Judge Amit Mehta has ruled that a report prepared by SD Solutions evaluating the FEC's IT systems in light of security guidelines published by the National Institute of Standards and Technology qualifies for protection under Exemption 7(E) (investigative methods and techniques). Dave Levinthal, an investigative reporter for the Center for Public Integrity, requested the NIST Study and any records mentioning it. The agency produced 1,450 pages of records, but withheld the NIST Study under Exemption 7(E) as well as Exemption 5 (privileges). Siding with the agency, Mehta noted the NIST Study had a rational nexus to the agency's law enforcement function. He pointed out that "a federal agency, like the Commission, cannot effectively carry out its law enforcement function unless it has a secure and reliable IT system. The Commission is responsible for investigating violations of the Federal Election Campaign Act. Its IT system contains sensitive information related to investigations. . .[T]he Commission's IT system is central to its law enforcement function." He noted that "the NIST Study in turn was designed to promote the integrity of that system and thus itself serves a law enforcement function. . .A study designed to evaluate and improve a critical law enforcement tool, such as an IT system, easily meets the rational nexus requirement." Mehta observed that the study was compiled for law enforcement purposes because it assessed the risk of a cybersecurity attack on the FEC's IT system. Levinthal argued the study had to pertain to an actual investigation to qualify for Exemption 7(E), but Mehta indicated that "the fact that the NIST Study does not pertain to a particular investigation does not place it outside Exemption 7(E)." Levinthal contended that disclosure of the NIST Study would not be harmful because the vulnerabilities it addressed had since been fixed. Mehta rejected the claim, noting that the agency's declaration "credibly demonstrates that disclosure of any portion of the NIST Study would pose a present and genuine security threat to the Commission's law enforcement function." While he acknowledged that much of the NIST Study was probably deliberative, Levinthal argued the agency had failed to show why it could not release non-exempt information from the study. Mehta pointed out that the agency's declaration "clearly establishes that the factual portions of the NIST Stud are 'inextricably intertwined' with its deliberative elements. It also sets forth with 'reasonable specificity' why those factual portions cannot be segregated."
Issues: Exemption 7(E) - Investigative methods or techniques, Exemption 5 - Privileges - Deliberative process privilege - Deliberative
User-contributed Documents
 Defendant Federal Election Commission's Answer
FEC's Motion for Summary Judgment [13]
FEC's Reply and Opposition [16]
Plaintiffs' Cross-Motion for Summary Judgment and Opposition[14
Plaintiffs' Reply [18]
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-10-051COMPLAINT against FEDERAL ELECTION COMMISSION ( Filing fee $ 400 receipt number 0090-4267077) filed by DAVE LEVINTHAL, CENTER FOR PUBLIC INTEGRITY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons to the Attorney General, # 4 Summons to the U.S. Attorney for D.C.)(Smith, Peter) (Entered: 10/05/2015)
2015-10-052LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR PUBLIC INTEGRITY (Smith, Peter) (Main Document 2 replaced on 10/5/2015) (md). (Entered: 10/05/2015)
2015-10-05Case Assigned to Judge Amit P. Mehta. (md) (Entered: 10/05/2015)
2015-10-053SUMMONS (3) Issued Electronically as to FEDERAL ELECTION COMMISSION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 10/05/2015)
2015-10-064RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/6/2015. Answer due for ALL FEDERAL DEFENDANTS by 11/5/2015. (Smith, Peter) (Entered: 10/06/2015)
2015-10-165RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/13/2015. (Attachments: # 1 Exhibit Postal Return Receipt, # 2 Exhibit USPS Tracking Info)(Smith, Peter) (Entered: 10/16/2015)
2015-11-056RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL ELECTION COMMISSION served on 10/13/2015 (Attachments: # 1 Exhibit Duplicate Return Receipt)(Smith, Peter) (Entered: 11/05/2015)
2015-11-057ANSWER to Complaint by FEDERAL ELECTION COMMISSION.(Interrante, John) (Entered: 11/05/2015)
2015-11-068ORDER: Both a complaint and an answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before November 20, 2015. Please see the attached Order for additional details. Signed by Amit P. Mehta on 11/06/2015. (lcapm3) (Entered: 11/06/2015)
2015-11-06Set/Reset Deadlines/Hearings: Joint Status Report due by 11/20/2015. (cdw) (Entered: 11/06/2015)
2015-11-209Joint STATUS REPORT and proposed scheduling order by FEDERAL ELECTION COMMISSION. (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 11/20/2015)
2015-11-23MINUTE ORDER: Upon consideration of the 9 Joint Status Report, the court orders Defendant to complete its production of all remaining non-exempt documents responsive to Plaintiffs' FOIA request by December 20, 2015. The parties are directed to file a Joint Status Report on or before January 19, 2016 advising the court of the status of Plaintiffs' FOIA request and, if necessary, proposing a summary judgment briefing schedule. Signed by Judge Amit P. Mehta on 11/23/2015. (lcapm3) (Entered: 11/23/2015)
2015-11-23Set/Reset Deadlines/Hearings: Joint Status Report due by 1/19/2016. (cdw) (Entered: 11/24/2015)
2016-01-0710NOTICE OF SUBSTITUTION OF COUNSEL by Wynne Patrick Kelly on behalf of FEDERAL ELECTION COMMISSION Substituting for attorney John Interrante (Kelly, Wynne) (Entered: 01/07/2016)
2016-01-1911Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY, DAVE LEVINTHAL. (Attachments: # 1 Text of Proposed Order)(Smith, Peter) (Entered: 01/19/2016)
2016-01-2012ORDER entering schedule proposed in the 11 Joint Status Report. Defendant's Motion for Summary Judgment shall be filed on or before March 18, 2016; Plaintiffs' Opposition and Consolidated Cross-Motion for Summary Judgment shall be filed on or before April 8, 2016; Defendant's Reply and Consolidated Opposition shall be filed on or before April 29, 2016; and Plaintiffs' Reply shall be filed on or before May 13, 2016. Signed by Judge Amit P. Mehta on 01/20/2016. (lcapm3) (Entered: 01/20/2016)
2016-01-21Set/Reset Deadlines: Defendant's Motion for Summary Judgment is due by 3/18/2016; Plaintiffs' Opposition and Consolidated Cross-Motion for Summary Judgment is due by 4/8/2016; Defendant's Reply and Consolidated Opposition is due by 4/29/2016; Plaintiffs' Cross-Reply is due by 5/13/2016. (jth) (Entered: 01/21/2016)
2016-03-1713MOTION for Summary Judgment by FEDERAL ELECTION COMMISSION (Attachments: # 1 Statement of Facts, # 2 Exhibit 1 - Decl. of Alec Palmer, # 3 Exhibit 2 - Decl. of Robert Kahn, # 4 Text of Proposed Order)(Kelly, Wynne) (Entered: 03/17/2016)
2016-04-0814Cross MOTION for Summary Judgment by CENTER FOR PUBLIC INTEGRITY, DAVE LEVINTHAL (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Smith, Peter) (Entered: 04/08/2016)
2016-04-0815Memorandum in opposition to re 13 MOTION for Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY, DAVE LEVINTHAL. (Smith, Peter) (Entered: 04/08/2016)
2016-04-2816Memorandum in opposition to re 14 Cross MOTION for Summary Judgment filed by FEDERAL ELECTION COMMISSION. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Kelly, Wynne) (Entered: 04/28/2016)
2016-04-2817REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by FEDERAL ELECTION COMMISSION. (Kelly, Wynne) (Entered: 04/28/2016)
2016-05-1318REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY, DAVE LEVINTHAL. (Attachments: # 1 Statement of Facts)(Smith, Peter) (Entered: 05/13/2016)
2016-11-0719NOTICE TO THE PARTIES disclosing the court's prior acquaintance with Ms. Lisa Stevenson and Ms. Erin Chlopak before the commencement of this matter. Please see the attached Notice for further details. Signed by Judge Amit P. Mehta on 11/07/2016. (lcapm3) (Entered: 11/07/2016)
2016-11-2320MEMORANDUM OPINION re: 13 Defendant's Motion for Summary Judgment and 14 Plaintiffs' Cross-Motion for Summary Judgment. Signed by Judge Amit P. Mehta on 11/23/2016. (lcapm3) (Entered: 11/23/2016)
2016-11-2321ORDER granting 13 Defendant's Motion for Summary Judgment and denying 14 Plaintiffs' Cross-Motion for Summary Judgment. See the attached Order for further details. Signed by Judge Amit P. Mehta on 11/23/2016. (lcapm3) (Entered: 11/23/2016)
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by FOIA Project Staff