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Case TitleHETZNECKER v. NATIONAL SECURITY AGENCY et al
DistrictEastern District of Pennsylvania
CityPhiladelphia
Case Number2:2016cv00945
Date Filed2016-02-29
Date Closed2017-08-23
JudgeHONORABLE BERLE M. SCHILLER
PlaintiffPAUL J. HETZNECKER
Case DescriptionPaul Hetznecker, a Philadelphia attorney representing the Occupy Philadelphia group, submitted FOIA requests to the National Security Agency, the CIA, and the FBI for records concerning surveillance of the Occupy Philadelphia group. The NSA failed to respond, the CIA told Hetznecker that it had no records because it did not have jurisdiction to conduct surveillance of domestic groups, and the FBI provide five heavily redacted records with redactions made under Exemption 7 (law enforcement records). Hetznecker appealed all the decisions, but after the agencies failed to respond, he filed suit.
Complaint issues: Failure to respond within statutory time limit, Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantNATIONAL SECURITY AGENCY
DefendantCENTRAL INTELLIGENCE AGENCY
DefendantFEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Opinion/Order [17]
Opinion/Order [18]
FOIA Project Annotation: A federal court in Pennsylvania has ruled that it is appropriate for it to conduct an in camera review of affidavits from the NSA and the CIA concerning records on the Occupy Philly movement. Paul Hetznecker, an attorney who had represented various members of the Occupy Philly movement against the City of Philadelphia, requested information about the Occupy Philly movement from the NSA, the CIA, and the FBI. Both the NSA and the CIA issued a Glomar response neither confirming nor denying the existence of records. The court ordered the two agencies to conduct a search for responsive records, compile a Vaughn index and submit the indices for in camera review. The agencies argued the court erred in ordering an in camera review and in refusing to consider the agencies' public affidavits as support for their Glomar responses. Relying on Patterson v. FBI, 893 F.2d 595 (3rd Cir. 1990), the court explained that the Third Circuit had upheld the district court's discretion in ordering an in camera review. The court noted that "even with a sufficiently detailed affidavit, the district court may still conduct in camera review when the agency claims the existence or nonexistence of certain records falls within an exemption of FOIA." As justification for ordering the in camera review, the court observed that "because this is a purely domestic records request of two internationally-focused agencies, the Court feels it must tread carefully, taking all responsible steps in order to arrive at the correct outcome. It therefore behooves the court to exercise its discretion under FOIA to conduct in camera review." The court indicated that "in the interim, Hetznecker and the general public will not be privy to any further interactions, if they occur, between the Court and the Agencies since the Court will conduct them ex parte. Thus, the Court's order preserves the status quo by not revealing to Hetznecker or to the public whether documents responsive to his request exist and the Agencies suffer no manifest injustice."
Issues: Determination - Glomar response, Litigation - In camera review
Opinion/Order [22]
Opinion/Order [23]
FOIA Project Annotation: A federal court in Pennsylvania has ruled that the FBI, the CIA, and the NSA properly responded to Paul Hetznecker's request for records concerning surveillance of the Occupy Philly protesters. Hetznecker was an attorney who represented some of the protesters after they were arrested by Philadelphia police. He requested records about the Occupy Philly Movement as well as "Occupy encampments in cities around the country" from the three agencies. The FBI located seven documents and disclosed them with redactions. The CIA and the NSA issued a Glomar response neither confirming nor denying the existence of records. The court was unsatisfied by that response and ordered the CIA and NSA to provide in camera affidavits better explaining their positions. After reviewing those materials, the court agreed that all three agencies had responded properly to Hetznecker's requests. Hetznecker argued that the FBI's search was inadequate because it did not look for records on Occupy encampments in other cities. The court noted that "Hetznecker's letter indicates 'Occupy Philly' no fewer than eight times without any reference to different Occupy movements. In the context of the request, 'Occupy' without more is reasonable shorthand for 'Occupy Philly,' and Hetznecker reasonably could have been asking for documents pertaining to the Occupy Philly movement in other cities. Without specifying other Occupy movements across the county, as in movements separate and discrete from Occupy Philly, the FBI's search terms were 'reasonably calculated to uncover all relevant documents.'" The FBI's redactions had been made under Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), Exemption 7(D) (confidential sources), and Exemption 7(E) (investigative methods and techniques). The court approved all of the agency's exemption claims. As to Exemption 7(D), the court noted that "the FBI redacted the unique identifying number of their confidential source, which could be used to ascertain the confidential source's identity. If FOIA required the FBI to disclose confidential source numbers, several FOIA requests across multiple investigations could be used to discern the identity of the confidential source." The court agreed that database identifiers could be withheld under Exemption 7(E). The court observed that "while information about individual units and sensitive case file numbers may not create the same risk in a vacuum, repeated disclosures of the information across a range of investigations would allow suspects to piece together a more complete picture of the FBI investigation." The court found that the Glomar response from both the CIA and the NSA was appropriate under Exemption 1 (national security).
Issues: Adequacy - Search, Determination - Glomar response, Exemption 7(D) - Confidential sources, Exemption 7(E) - Investigative methods or techniques
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-02-291COMPLAINT against CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY ( Filing fee $ 400 receipt number 136165.), filed by PAUL J. HETZNECKER. (Attachments: # 1 Designation Form, # 2 Civil Cover Sheet, # 3 Case Management Track Form)(jwl, ) (Entered: 02/29/2016)
2016-02-29Summons Issued as to CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY. Four Forwarded To: Counsel, one given to AUSA on 2/29/16 (jwl, ) (Entered: 02/29/2016)
2016-03-012Acceptance of Service by U.S. Attorney, Re: accepted summons and complaint on behalf of the United States Attorney (only). (kw, ) (Entered: 03/01/2016)
2016-03-173Consent MOTION for Extension of Time to File Answer re 1 Complaint, filed by CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY.Certificate of Service.(MENTZINGER, RICHARD) (Entered: 03/17/2016)
2016-03-174ORDER THAT DEFTS' MOTION FOR A 30-DAY EXTENSION OF TIME TO RESPOND TO THE COMPLAINT IS GRANTED. DEFTS SHALL HAVE UP TO & INCLUDING 5/2/2016 TO RESPOND TO PLFF'S COMPLAINT. SIGNED BY HONORABLE BERLE M. SCHILLER ON 3/17/16.3/17/16 ENTERED AND COPIES E-MAILED.(kw, ) (Entered: 03/17/2016)
2016-05-025Defendants' ANSWER to 1 Complaint, Certificate of Service by CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY.(MENTZINGER, RICHARD) (Entered: 05/02/2016)
2016-06-106NOTICE OF SCHEDULING CONFERENCE SET FOR TUESDAY 7/12/2016 AT 10:00 AM IN CHAMBERS (ROOM 13613) BEFORE THE HONORABLE BERLE M. SCHILLER. IT IS EXPECTED THAT THE PARTIES SHALL HAVE CONDUCTED SUBSTANTIAL DISCOVERY BY THE TIME OF THE RULE 16 CONFERENCE. (jp, ) (Entered: 06/10/2016)
2016-06-237ORDER THAT DEFTS SHALL AMEND THEIR ANSWER (DOC. NO. 5) TO PROVIDE MORE DETAILED AFFIRMATIVE DEFENSES BY 7/5/2016.SIGNED BY HONORABLE BERLE M. SCHILLER ON 6/22/16. 6/23/16 ENTERED AND COPIES E-MAILED.(kw, ) (Entered: 06/23/2016)
2016-07-058Amended ANSWER to 1 Complaint, by CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY.(MENTZINGER, RICHARD) (Entered: 07/05/2016)
2016-07-129SCHEDULING ORDER THAT DEFTS' MOTION FOR SUMMARY JUDGMENT SHALL BE FILED BY 9/12/2016. PLFF'S RESPONSE SHALL BE FILED BY 10/3/2016. DEFTS MAY FILE A REPLY BRIEF ON OR BEFORE 10/17/2016, ETC. SIGNED BY HONORABLE BERLE M. SCHILLER ON 7/12/16. 7/12/16 ENTERED AND COPIES E-MAILED.(kw, ) (Entered: 07/12/2016)
2016-09-1210MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY.Memorandum of Law and Certificate of Service. (Attachments: # 1 Declaration of David M. Hardy, # 2 Declaration of David J. Sherman, # 3 Declaration of Antoinette B. Shiner)(MENTZINGER, RICHARD) (Entered: 09/12/2016)
2016-10-0711RESPONSE to Motion re 10 MOTION for Summary Judgment filed by PAUL J. HETZNECKER. Certificate of Service. (Attachments: # 1 Exhibit)(HETZNECKER, PAUL) Modified on 10/12/2016 (tjd). (Entered: 10/07/2016)
2016-10-1712Plff's Revised Response to deft's motion for summary judgment, Certificate of Service, filed by PLFF PAUL J. HETZNECKER. (Attachments: # 1 Exhibits)(kw, ) (Entered: 10/17/2016)
2016-11-0613REPLY to Response to Motion re 10 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY. Certificate of Service. (MENTZINGER, RICHARD) Modified on 11/10/2016 (tjd). (Entered: 11/06/2016)
2016-11-1014ORDER THAT ON OR BEFORE 11/28/2016, DEFT FEDERAL BUREAU OF INVESTIGATION TURN OVER TO THE COURT UNREDACTED COPIES OF THE FREEDOM OF INFORMATION ACT DISCLOSURES MADE TO PLFF FOR IN CAMERA REVIEW, ETC. SIGNED BY HONORABLE BERLE M. SCHILLER ON 11/10/16. 11/14/16 ENTERED AND COPIES E-MAILED.(kw, ) (Entered: 11/14/2016)
2016-11-2815MOTION for Reconsideration re 14 Order, filed by CENTRAL INTELLIGENCE AGENCY, NATIONAL SECURITY AGENCY.Memorandum and Cerificate of Service.(MENTZINGER, RICHARD) (Entered: 11/28/2016)
2016-12-0716RESPONSE to Motion re 15 MOTION for Reconsideration re 14 Order, filed by PAUL J. HETZNECKER. (HETZNECKER, PAUL) (Entered: 12/07/2016)
2017-01-2017MEMORANDUM AND/OR OPINION.SIGNED BY HONORABLE BERLE M. SCHILLER ON 1/20/17.1/20/17 ENTERED AND COPIES E-MAILED.(kw, ) (kw, ) (Entered: 01/20/2017)
2017-01-2018ORDER THAT DEFT'S MOTION FOR RECONSIDERATION IS DENIED. SIGNED BY HONORABLE BERLE M. SCHILLER ON 1/20/17.1/20/17 ENTERED AND COPIES E-MAILED.(kw, ) (Entered: 01/20/2017)
2017-03-0719NOTICE of Appearance by JENNIFER A. WILLIAMS on behalf of CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY (WILLIAMS, JENNIFER) (Entered: 03/07/2017)
2017-03-0720MOTION for Order Designating Classified Information Security Officers filed by CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION U.S. DEPARTMENT OF JUSTICE OFFICE OF INFORMATION POLICY, NATIONAL SECURITY AGENCY.Certificate of Service.(WILLIAMS, JENNIFER) (Entered: 03/07/2017)
2017-03-1621ORDER THAT THE COURT DESIGNATES HARRY J. RUCKER AS THE CLASSIFIED INFORMATION SECURITY OFFICER IN THIS CASE. IT IS FURTHER ORDERED THAT THE COURT DESIGNATES THE FOLLOWING PERSONS AS ALTERNATE CLASSIFIED INFORMATION SECURITY OFFICERS, TO SERVE IN THE EVENT MR. RUCKER IS UNAVAILABLE: JOAN B. KENNEDY, MAURA L. PETERSON, CARLI V. RODRIQUEZ-FEO, MATTHEW S. JUNTZ, DANIEL O. HARTENSTINE, SHAWN P. MAHONEY, DEBRA M. GUERRERO-RANDELL, & W. SCOOTER SLADE, ETC. SIGNED BY HONORABLE BERLE M. SCHILLER ON 3/8/17.3/16/17 ENTERED AND COPIES E-MAILED.(kw, ) (Entered: 03/16/2017)
2017-08-2322MEMORANDUM AND OPINION. SIGNED BY HONORABLE BERLE M. SCHILLER ON 8/23/17. 8/23/17 ENTERED & E-MAILED.(fdc) (Entered: 08/23/2017)
2017-08-2323MEMORANDUM AND ORDERTHAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#10) IS GRANTED. THE CLERK OF COURT IS DIRECTED TO CLOSE THIS CASE. SIGNED BY HONORABLE BERLE M. SCHILLER ON 8/23/17. 8/23/17 ENTERED & E-MAILED.(fdc) (Entered: 08/23/2017)
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by FOIA Project Staff