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Case TitleFreedom of the Press Foundation v. United States Department of Justice
DistrictNorthern District of California
CityOakland
Case Number4:2015cv03503
Date Filed2015-07-30
Date Closed2017-03-13
JudgeHon. Haywood S Gilliam, Jr
PlaintiffFreedom of the Press Foundation
DefendantUnited States Department of Justice
DefendantReporters Committee for Freedom of the Press
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [51]
FOIA Project Annotation: A federal court in California has ruled that the FBI conducted an adequate search for records concerning procedures for issuing national security letters to obtain information from members of the media. In response to a request by the Freedom of the Press Foundation, the FBI located 302 pages and disclosed 156 pages. The request was also referred to the Office of the General Counsel, which located 134 pages and disclosed 72 pages. The Foundation challenged the adequacy of the search as well as various exemption claims. The FBI told the court that it could not search its Central Records System, which is organized by individuals, organizations, companies, and events, because the request focused more broadly on agency policy. As a result, the search was conducted by the Discovery Processing Unit, which referred it to OGC's three branches " the National Security Law Branch, the Litigation Branch, and the Investigative and General Law Branch. A keyword search of an unclassified version of the Domestic Investigations and Operation Guide was conducted using the term "national security letter." The court rejected the Foundation's contention that the search was insufficient because it did not identify Appendix G of the DIOG and did not find any records dated before 2014, noting that the omission of Appendix G "standing alone, is insufficient to render the FBI's search inadequate." In challenging the agency's Exemption 3 (other statutes) claim, the Foundation argued that the agency's explanation fell short of the level of detail required in Weiner v. FBI, 943 F.2d 972 (9th Cir. 1991). But the court indicated that the Ninth Circuit, in Hamdan v. Dept of Justice, 797 F.3d 759 (9th Cir. 2015), had deferred to an agency's decision to provide less detailed affidavits in cases involving national security investigations. Here, the court found the level of detail met the Hamdan standard. The Foundation argued the agency was required to show more detail in explaining why certain records were protected by Exemption 5 (privileges). But the court observed that "Defendant has already explained the nature of the withheld information. It need not disclose the specific comments or how the final policies ultimately changed in light of such feedback because that would create an end-run around the exemption." The Foundation challenged the agency's segregability analysis, focusing primarily on the fact that so much information was withheld under the deliberative process privilege. The court indicated, however, that "the question is not whether Defendant withheld numerous pages, but rather whether they were properly withheld and segregated. Plaintiff's speculative suggestion is not enough to overcome the presumption of good faith."
Issues: Adequacy - Search, Exemption 1 - Harm to national security, Exemption 5 - Privileges
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-07-301COMPLAINT against United States Department of Justice ( Filing fee $ 400, receipt number 0971-9719556.). Filed byFreedom of the Press Foundation. (Attachments: # 1 Civil Cover Sheet)(Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)
2015-07-302Proposed Summons. (Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)
2015-07-303Certificate of Interested Entities by Freedom of the Press Foundation (Hofmann, Marcia) (Filed on 7/30/2015) (Entered: 07/30/2015)
2015-07-304Case assigned to Hon. Haywood S Gilliam, Jr. 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. (bwS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)
2015-07-305Summons Issued as to United States Department of Justice (dtmS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)
2015-07-306Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/27/2015. Case Management Conference set for 11/3/2015 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (dtmS, COURT STAFF) (Filed on 7/30/2015) (Entered: 07/30/2015)
2015-07-307MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971-9722378.) filed by Freedom of the Press Foundation. (Attachments: # 1 Supplement NY Certificate of Good Standing, # 2 Supplement NJ Certificate of Good Standing)(Baranetsky, Diana) (Filed on 7/30/2015) (Entered: 07/30/2015)
2015-07-318ORDER by Judge Haywood S. Gilliam, Jr. Granting 7 Motion for Pro Hac Vice. (ndrS, COURT STAFF) (Filed on 7/31/2015) (Entered: 07/31/2015)
2015-07-319CERTIFICATE OF SERVICE by Freedom of the Press Foundation (Hofmann, Marcia) (Filed on 7/31/2015) (Entered: 07/31/2015)
2015-07-31Electronic filing error. E-filer's Attestation Required. http://cand.uscourts.gov/ecf/signatures Re: 9 Certificate of Service filed by Freedom of the Press Foundation (dtmS, COURT STAFF) (Filed on 7/31/2015) (Entered: 07/31/2015)
2015-07-3110CERTIFICATE OF SERVICE by Freedom of the Press Foundation re 5 Summons Issued as to USA, 6 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 8 Order on Motion for Pro Hac Vice, 1 Complaint (Baranetsky, Diana) (Filed on 7/31/2015) (Entered: 07/31/2015)
2015-09-0211Defendant's ANSWER to Complaint for Injunctive Relief byUnited States Department of Justice. (Tseng, Neill) (Filed on 9/2/2015) (Entered: 09/02/2015)
2015-10-1312NOTICE of Appearance by Andrew Marshall Bernie (Bernie, Andrew) (Filed on 10/13/2015) (Entered: 10/13/2015)
2015-10-1313ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Hofmann, Marcia) (Filed on 10/13/2015) (Entered: 10/13/2015)
2015-10-1314NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Hofmann, Marcia) (Filed on 10/13/2015) (Entered: 10/13/2015)
2015-10-1315ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Bernie, Andrew) (Filed on 10/13/2015) (Entered: 10/13/2015)
2015-10-1416ADR Clerk's Notice Setting ADR Phone Conference on October 22, 2015 at 10:30 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 10/14/2015) (Entered: 10/14/2015)
2015-10-22ADR Remark: ADR Phone Conference held by Tamara Lange, ADR Program Staff Attorney, on 10/22/2015. A further ADR Phone Conference is scheduled on 1/20/2016 at 10:00 AM Pacific time. The call-in information remains the same. (af, COURT STAFF) (Filed on 10/22/2015) Modified on 10/22/2015 (af, COURT STAFF). (Entered: 10/22/2015)
2015-10-2717CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Baranetsky, Diana) (Filed on 10/27/2015) (Entered: 10/27/2015)
2015-10-2918Consent MOTION to Appear by Telephone at the November 3, 2015 Case Management Conference filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Bernie, Andrew) (Filed on 10/29/2015) (Entered: 10/29/2015)
2015-11-0219ORDER by Judge Haywood S. Gilliam, Jr. Granting 18 Motion to Appear by Telephone at the November 3, 2015 Case Management Conference. (ndrS, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/02/2015)
2015-11-0320Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Case Management Conference held on 11/3/2015. FTR Time 2:14-2:26 (12 Minutes). Plaintiff Attorney Marcia Hoffman; D. Victoria Baranetsky. Defendant Attorney Andrew Berbia appeaeing via CourtCall. Matter is continued to January 19, 2016 at 2:00 for further case management conference. Court not opposed to counsel for Defendant appearing via CourtCall at the next case management conference upon request. (This is a text minute entry, there is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 11/3/2015) (Entered: 11/04/2015)
2016-01-1121Consent MOTION to Appear by Telephone at the January 19, 2016 Case Management Conference filed by United States Department of Justice. (Attachments: # 1 Proposed Order)(Bernie, Andrew) (Filed on 1/11/2016) (Entered: 01/11/2016)
2016-01-1122ORDER by Judge Haywood S. Gilliam, Jr. Granting 21 Motion to Appear by Telephone at the January 19, 2016 Case Management Conference. Counsel shall contact CourtCall at (866) 582-6878 to make arrangements for the telephonic appearance. (ndrS, COURT STAFF) (Filed on 1/11/2016) (Entered: 01/11/2016)
2016-01-1223CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Hofmann, Marcia) (Filed on 1/12/2016) (Entered: 01/12/2016)
2016-01-1924Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Further Case Management Conference held on 1/19/2016 (16 minutes). FTR Time 2:02-2:18. Plaintiff Attorney Marcia Hoffman; D. Victoria Baranetsky. Defendant Attorney Andrew Bernie appearing via CourtCall. The parties are directed to meet and confer regarding briefing schedule and e-file a stipulation and proposed order by the end of the day on Friday, January 23, 2016. The Court sets March 21, 2016 as the deadline to exchange the Vaughn index. Parties are directed to follow through with their currently scheduled ADR call. (This is a text minute entry, there is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 1/19/2016) (Entered: 01/20/2016)
2016-01-20ADR Remark: ADR Phone Conference held by TL on 1/20/2016. (af, COURT STAFF) (Filed on 1/20/2016) (Entered: 01/20/2016)
2016-01-2125STIPULATION WITH PROPOSED ORDER Concerning Briefing Schedule filed by United States Department of Justice. (Bernie, Andrew) (Filed on 1/21/2016) (Entered: 01/21/2016)
2016-01-2126ORDER by Judge Haywood S. Gilliam, Jr. Granting 25 Stipulation Concerning Briefing Schedule. (ndrS, COURT STAFF) (Filed on 1/21/2016) (Entered: 01/21/2016)
2016-01-21Set Deadlines/Hearings Pursuant to Docket No. 26 : Case Management Statement due by 4/1/2016; Motions due by 5/9/2016. Responses/Cross Motions due by 6/10/2016; Replies/Oppositions due by 7/1/2016; Replies due by 7/1/2016; Motion Hearing set for 8/11/2016 02:00 PM before Hon. Haywood S Gilliam Jr.. (ndrS, COURT STAFF) (Filed on 1/21/2016) (Entered: 01/21/2016)
2016-01-2827NOTICE by Freedom of the Press Foundation of Change of Law Practice Name (Hofmann, Marcia) (Filed on 1/28/2016) (Entered: 01/28/2016)
2016-04-0128CASE MANAGEMENT STATEMENT filed by Freedom of the Press Foundation. (Baranetsky, Diana) (Filed on 4/1/2016) (Entered: 04/01/2016)
2016-04-1129ORDER directing Defendant to notice the motion for summary judgment due May 9, 2016, for hearing on August 18, 2016, at 2:00 pm in Courtroom 10, 19th Floor, San Francisco. Any cross-motion for summary judgment by Plaintiff should also be noticed for August 18, 2016. The motion hearing previously set for August 11, 2016, is vacated. (This is a text-only entry; there is no document associated with this entry.) (hsglc2S, COURT STAFF) (Filed on 4/11/2016) (Entered: 04/11/2016)
2016-05-0930MOTION for Summary Judgment filed by United States Department of Justice. Motion Hearing set for 8/18/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 6/10/2016. Replies due by 7/1/2016. (Attachments: # 1 Declaration Declaration of David Hardy, # 2 Exhibit Exhibits to Declaration of David Hardy, # 3 Proposed Order)(Bernie, Andrew) (Filed on 5/9/2016) (Entered: 05/09/2016)
2016-05-1731STIPULATION WITH PROPOSED ORDER Substituting Counsel filed by Freedom of the Press Foundation. (Ghappour, Ahmed) (Filed on 5/17/2016) (Entered: 05/17/2016)
2016-05-1832ORDER by Judge Haywood S. Gilliam, Jr. Granting 31 STIPULATION OF SUBSTITUTION OF COUNSEL FOR PLAINTIFF FREEDOM OF THE PRESS FOUNDATION. (ndrS, COURT STAFF) (Filed on 5/18/2016) (Entered: 05/18/2016)
2016-06-0133STIPULATION WITH PROPOSED ORDER to Exceed Page Limit filed by Freedom of the Press Foundation. (Hofmann, Marcia) (Filed on 6/1/2016) (Entered: 06/01/2016)
2016-06-0334DISREGARD, INCORRECT DOCUMENT ATTACHED. SEE DOCKET NO. [35[ FOR CORERCT ORDER. ORDER by Judge Haywood S. Gilliam, Jr. Granting 33 Stipulation to Exceed Page Limit. (ndrS, COURT STAFF) (Filed on 6/3/2016) Modified on 6/7/2016 (ndrS, COURT STAFF). (Entered: 06/03/2016)
2016-06-0335ORDER Granting 33 STIPULATION to Exceed Page Limit . Signed by Judge Haywood S. Gilliam, Jr. on 6/3/2016. (ndrS, COURT STAFF) (Filed on 6/3/2016) (Entered: 06/07/2016)
2016-06-1036MOTION to File Amicus Curiae Brief of the Reporters Committee for Freedom of the Press and 37 Media Organizations and Brief Amicus Curiae in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment filed by Reporters Committee for Freedom of the Press. Motion Hearing set for 8/18/2016 02:00 PM in Courtroom 10, 19th Floor, San Francisco before Hon. Haywood S Gilliam Jr.. Responses due by 6/24/2016. Replies due by 7/1/2016. (KatieLynn, Townsend) (Filed on 6/10/2016) (Entered: 06/10/2016)
2016-06-1037RESPONSE (re 30 MOTION for Summary Judgment ) and CROSS MOTION for Summary Judgment filed byFreedom of the Press Foundation. (Attachments: # 1 Proposed Order)(Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)
2016-06-1038Declaration of Marcia Hofmann in Support of 37 Opposition/Response to Motion and Cross Motion for Summary Judgment filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Related document(s) 37 ) (Hofmann, Marcia) (Filed on 6/10/2016) (Entered: 06/10/2016)
2016-06-1039EXHIBIT 10 re 38 Declaration in Support, filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 10 part 1, # 2 Exhibit 10 part 2, # 3 Exhibit 10 part 3, # 4 Exhibit 10 part 4, # 5 Exhibit 10 part 5, # 6 Exhibit 10 part 6, # 7 Exhibit 10 part 7)(Related document(s) 38 ) (Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)
2016-06-1040EXHIBITS 11 - 15 re 38 Declaration in Support, filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15)(Related document(s) 38 ) (Hofmann, Marcia) (Filed on 6/10/2016) Modified on 6/13/2016 (dtmS, COURT STAFF). (Entered: 06/10/2016)
2016-06-13Electronic filing error. Incorrect event used. Correct event is EXHIBIT.Corrected by Clerk's Office. No further action is necessary. Re: 40 Declaration in Support, 39 Declaration in Support, filed by Freedom of the Press Foundation (dtmS, COURT STAFF) (Filed on 6/13/2016) (Entered: 06/13/2016)
2016-06-2441STIPULATION WITH PROPOSED ORDER To Extend by Fourteen Days Defendant's Deadline to File its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed by United States Department of Justice. (Bernie, Andrew) (Filed on 6/24/2016) (Entered: 06/24/2016)
2016-06-2742ORDER by Judge Haywood S. Gilliam, Jr. Granting 41 Stipulation Extend by Fourteen Days Defendant's Deadline to File its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)
2016-06-27Reset Deadline Pursuant to Docket No. 42 as to 30 MOTION for Summary Judgment : Replies due by 7/15/2016. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)
2016-06-2743ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 36 Motion to File Amicus Curiae Brief. (ndrS, COURT STAFF) (Filed on 6/27/2016) (Entered: 06/27/2016)
2016-07-1544REPLY (re 30 MOTION for Summary Judgment ) and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed byUnited States Department of Justice. (Attachments: # 1 Declaration)(Bernie, Andrew) (Filed on 7/15/2016) (Entered: 07/15/2016)
2016-08-0845REPLY (re 30 MOTION for Summary Judgment ) filed byFreedom of the Press Foundation. (Hofmann, Marcia) (Filed on 8/8/2016) (Entered: 08/08/2016)
2016-08-0846Declaration of Marcia Hofmann in Support of 45 Reply to Opposition/Response (Supplemental) filed byFreedom of the Press Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 45 ) (Hofmann, Marcia) (Filed on 8/8/2016) (Entered: 08/08/2016)
2016-08-1847Minute Entry for proceedings held before Hon. Haywood S. Gilliam, Jr.: Motion Hearing held on 8/18/2016 (Total Time in Court 35 Minutes). Court Reporter Name Rhonda Aquilina. Plaintiff Attorney Marcia Hoffman. Defendant Attorney Andrew Bernie. The parties cross motions for summary judgment (docket nos. 30 , 37 ) are argued and submitted by the parties, and taken under submission by the Court. This is a text only Minute Entry (ndrS, COURT STAFF) (Date Filed: 8/18/2016) (Entered: 08/19/2016)
2017-02-0748NOTICE of Withdrawal of Counsel Neill T. Tseng and Proposed Order Permitting Withdrawal by United States Department of Justice (Tseng, Neill) (Filed on 2/7/2017) Modified on 2/8/2017 (alsS, COURT STAFF). (Entered: 02/07/2017)
2017-02-0849ORDER Granting 48 Notice of Withdrawal of Counsel Neill T. Tseng and Permitting Withdrawal. Signed by Judge Haywood S. Gilliam, Jr. on 2/8/2017. (ndrS, COURT STAFF) (Filed on 2/8/2017) (Entered: 02/08/2017)
2017-03-0150CLERKS NOTICE REGARDING CHANGE OF LOCATION FOR JUDGE GILLIAM: Effective March 2, 2017, Judge Haywood S. Gilliam, Jr.'s courtroom and chambers will be located in the Ronald V. Dellums Federal Building and United States Courthouse, Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612. On or after March 2, 2017, all filings for matters pending on Judge Gilliam's docket, all court appearances, and all deliveries of chambers copies of documents must be made at the Oakland Courthouse. The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged. Please note that all of Judge Gilliam's case files will be moved to the Oakland Courthouse; therefore, all case numbers assigned to him will be changed slightly to reflect the correct location. Previously, all case numbers started with 3 to indicate the San Francisco office (Example: 3:15-cv-1129-HSG). As of March 2, 2017 all of Judge Gilliam's case files will begin with 4 to indicate the Oakland office, but everything else will stay the same (Example: 4:15-cv-1129-HSG). When e-filing, using the short case number format will always avoid problems when searching for the correct case: 12-12345 (YY-NNNNN). For information on the Oakland Courthouse please go to: http://cand.uscourts.gov/locations-oakland This is a text only docket entry; there is no document associated with this notice. (slhS, COURT STAFF) (Filed on 3/1/2017) (Entered: 03/01/2017)
2017-03-1351ORDER by Judge Haywood S. Gilliam, Jr. RE ( 30 , 37 ) CROSS MOTIONS FOR SUMMARY JUDGMENT. (ndrS, COURT STAFF) (Filed on 3/13/2017) (Entered: 03/13/2017)
2017-03-1352CLERK'S JUDGMENT in favor of United States Department of Justice against Freedom of the Press Foundation. (ndrS, COURT STAFF) (Filed on 3/13/2017) (Entered: 03/13/2017)
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by FOIA Project Staff