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Case TitleELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv01039
Date Filed2017-05-31
Date ClosedOpen
JudgeJudge Dabney L. Friedrich
PlaintiffELECTRONIC FRONTIER FOUNDATION
Case DescriptionThe Electronic Frontier Foundation submitted a FOIA request to the FBI for records concerning the use of informants at Best Buy facilities. EFF also requested inclusion in the news media fee category. The FBI told EFF that it would neither confirm nor deny the existence of records concerning an investigation. EFF filed an administrative appeal with the Office of Information Policy, but after hearing nothing further from the agency, EFF filed suit.
Complaint issues: Failure to respond within statutory time limit, Fee Category - Media or Educational, Litigation - Attorney's fees

DefendantDEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [24]
FOIA Project Annotation: Judge Dabney Friedrich, the most recent Trump-appointed judge on the U.S. District Court for the District of Columbia, has already shown that she can be occasionally highly critical of the government's processing of FOIA requests. Last year, she lambasted the IRS for withholding records about its FOIA policies in a case brought by University of Denver Law Professor Margaret Kwoka. Now, she has rejected the FBI's Glomar response neither confirming nor denying the existence of records in a case brought by the Electronic Frontier Foundation for records about the agency's use of Best Buy computer technicians as informants in cases involving possession of child pornography. The case began as a result of the FBI's admission in United States v. Rettenmaier, a child pornography case brought in the Central District of California that a Best Buy employee at a data recovery facility in Brooks, Kentucky had discovered a suspicious image of a child while repairing Rettenmaier's computer. The employee's supervisor alerted the FBI, triggering a criminal investigation that led to Rettenmaier's prosecution. The judge presiding over the case issued an order citing evidence about the FBI's cooperation with Best Buy employees. The agency ultimately revealed that it had used eight informants at Best Buy's Brooks, Kentucky data-recovery facility from 2007 through 2016 and named four of those informants. EFF requested records concerning policies for training conducted for Best Buy employees in the detection of child pornography on computers brought to Best Buy for repair. The FBI agreed to search for records acknowledged by their court filings, but it issued a Glomar response under Exemption 7(E) (investigative methods or techniques) for any other material about training or recruiting. The agency disclosed 14 pages in full and 151 pages in part and withheld 78 pages entirely. Besides Exemption 7(E), the agency withheld records under Exemption 6 (invasion of privacy), Exemption 7(A) (interference with ongoing investigation or proceeding), Exemption 7(C) (invasion of privacy concerning law enforcement records), and Exemption 7(D) (confidential sources). EFF's challenge focused on the appropriateness of the agency's Glomar response for documents unrelated to the Rettenmaier disclosures and redactions under Exemption 7(E), whether Exemption 7(C) protected the name of an individual convicted as a result of information obtained from the Kentucky Best Buy, and whether the agency had justified categorical withholdings under Exemption 6, Exemption 7(C, Exemption 7(D), and Exemption 7(E). EFF acknowledged that the records had been created for law enforcement purposes but argued that the FBI's use of computer technicians as informants was publicly known. Friedrich agreed that the agency had failed to justify its Glomar response as applied to all four parts of EFF's request, that it had justified its withholdings for records its processed, but that it had not justified its categorical withholding claims. Friedrich pointed out that the FBI was concerned that "disclosing the existence of responsive documents would reveal whether the FBI uses computer technician informants at specific locations and how frequently it relies on such information." But Friedrich observed that "a Glomar response under exemption 7(E), however, is only appropriate where the mere existence of documents would risk circumvention of the law. Concerns about the precise number or contents of any responsive documents can be addressed through litigation about the scope of any withholdings and the level of detail that must be provided to justify those withholdings." Appling that standard here, Friedrich noted that "in this case, disclosing the mere existence " as opposed to the number or type " of any documents " would reveal little, if any, information about the nature of the frequency of the FBI's use of computer technician informants beyond what the FBI has already disclosed. . .Disclosing the existence of at least one additional document would merely confirm that the FBI has used an informant outside of the 2007-2016 timeframe " but possibly only one " at the Kentucky Best Buy. Such a disclosure would not reveal whether the FBI has enlisted informants from any other Best Buy or computer repair store. Nor would it reveal how frequently the FBI has developed established relationships with, or obtained evidence from, computer technician informants." Likewise, Friedrich rejected the agency's claim that disclosure would embolden criminal activity. She pointed out that "to conclude otherwise would presume that criminals have no reason to believe that computer technicians ever cooperate with law enforcement agencies. That seems highly unlikely given that several states require computer technicians to report suspected child pornography to law enforcement agencies." She added that "to the extent disclosing the non-existence of responsive documents will encourage criminals to retain evidence, the disclosure will enhance, not diminish, law enforcement efforts to identify and prosecute computer crimes." However, she noted that her ruling was limited, explaining that "the Court expresses no view as to whether the FBI may legitimately assert a partial Glomar response to some aspects of EFF's request, perhaps even to entire categories of EFF's four-part request. The Court concludes only that the current partial Glomar response to the entirety of EFF's request is unjustified." EFF argued that the FBI could not withhold information about its use of computer technicians as informants because such a technique was already well-known. Friedrich, however, found that the agency's withholdings were proper, noting that "revealing this information would reduce the effectiveness of using informants" and agreed with the agency that its segregability efforts were appropriate. She observed that "the record as a whole reveals that the FBI's explanation was detailed and sufficiently tailored." But she rejected the agency's attempt to withhold records contained in four informant files categorically. She pointed out that "it is unclear, on this record, how these documents will reveal personal information about any of the informants, or why redactions of any personal identifying information will not protect any privacy interests to the extent they exist." Having rejected the agency's categorical claims, the agency alternatively claimed that certain information was protected by various subparts of Exemption 7. EFF argued that under Maydak v. Dept of Justice, 218 F.3d 760 (D.C. Cir. 2000), the agency had waived that argument by not asserting it previously. But Friedrich observed that "EFF confuses a failure to invoke an exemption at all with a failure to satisfy the FBI's burden to justify the application of an exemption." She pointed out that the FBI's affidavits had clearly identified the exemptions it claimed protected the withheld records.
Issues: Determination - Glomar response, Exemption 7(E) - Unknown to public
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-05-311COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4971529) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General, # 3 Summons US Attorney, # 4 Summons Department of Justice)(Sobel, David) (Entered: 05/31/2017)
2017-05-312Corporate Disclosure Statement by ELECTRONIC FRONTIER FOUNDATION. (Sobel, David) (Entered: 05/31/2017)
2017-05-31Case Assigned to Judge Christopher R. Cooper. (zsb) (Entered: 05/31/2017)
2017-05-313SUMMONS (3) Issued Electronically as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 05/31/2017)
2017-06-094RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 6/6/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/6/2017. RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/6/2017. Answer due for ALL FEDERAL DEFENDANTS by 7/6/2017. (Attachments: # 1 Affidavit of Mailing and Service)(Sobel, David) Modified on 6/12/2017 to add service dates for US Attorney General and Federal Defendant(zrdj). (Entered: 06/09/2017)
2017-07-065NOTICE of Appearance by Michael Leon Drezner on behalf of DEPARTMENT OF JUSTICE (Drezner, Michael) (Entered: 07/06/2017)
2017-07-066ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Drezner, Michael) (Entered: 07/06/2017)
2017-07-06MINUTE ORDER: Before the Court in this FOIA case are 1 a complaint and 6 an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure by July 21, 2017. Signed by Judge Christopher R. Cooper on 7/6/2017. (lccrc2) (Entered: 07/06/2017)
2017-07-07Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 7/21/2017 (lsj) (Entered: 07/07/2017)
2017-07-207Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Drezner, Michael) (Entered: 07/20/2017)
2017-07-21MINUTE ORDER: In light of 7 parties' Joint Status Report, it is hereby ORDERED that the summary-judgement briefing schedule shall be established as follows: Defendant shall file its motion for summary judgment on or by September 22, 2017; Plaintiff shall file its cross-motion for summary judgment and opposition on or by October 23, 2017; Defendant shall file its reply and opposition on or by December 1, 2017; and Plaintiff shall file its reply on or by December 15, 2017. Signed by Judge Christopher R. Cooper on 7/21/2017. (lccrc2) (Entered: 07/21/2017)
2017-07-21Set/Reset Deadlines: Defendant's Summary Judgment motion due by 9/22/2017. Plaintiff's Response to Motion for Summary Judgment/Cross Motion due by 10/23/2017. Defendant's Reply to Motion for Summary Judgment due by 12/1/2017. Reply due by 12/15/2017 (hs) (Entered: 07/21/2017)
2017-09-118Joint MOTION to Vacate Order,, Setting Summary Judgment Briefing Schedule by ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 09/11/2017)
2017-09-13MINUTE ORDER granting 8 Motion to Vacate Summary Judgment Briefing Schedule. The Court will vacate the current summary judgment briefing schedule. The parties shall file a joint status report on September 22, 2017 updating the Court on the status of the case. The parties shall file a further status report on October 20, 2017 updating the Court on the status of the case and any proposed production or briefing schedule. Signed by Judge Christopher R. Cooper on 9/13/2017. (lccrc2) (Entered: 09/13/2017)
2017-09-229Joint STATUS REPORT by ELECTRONIC FRONTIER FOUNDATION. (Sobel, David) (Entered: 09/22/2017)
2017-10-2010Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Drezner, Michael) (Entered: 10/20/2017)
2017-10-23MINUTE ORDER: In light of 10 the parties' Joint Status Report, it is ORDERED that Defendant shall make a first production of non-exempt portions of responsive records by November 30, 2017; a second production by January 4, 2018; a third production by February 1, 2018; and a fourth production, if needed, by March 1, 2018. It is further ORDERED that the parties shall file joint status reports with the Court every 60 days commencing December 19, 2017. Signed by Judge Christopher R. Cooper on 10/23/2017. (lccrc2) (Entered: 10/23/2017)
2017-10-23Set/Reset Deadlines: Joint Status Report due by 12/19/2017 (lsj) (Entered: 10/23/2017)
2017-12-04Case directly reassigned to Judge Dabney L. Friedrich. Judge Christopher R. Cooper is no longer assigned to the case. (ztnr) (Entered: 12/04/2017)
2017-12-1911Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Drezner, Michael) (Entered: 12/19/2017)
2018-01-18MINUTE ORDER. It is hereby ORDERED that the parties shall continue to proceed in compliance with the orders and schedule previously set in this case. Signed by Judge Dabney L. Friedrich on January 18, 2018. (MJS) (Entered: 01/18/2018)
2018-02-2012Joint STATUS REPORT by ELECTRONIC FRONTIER FOUNDATION. (Sobel, David) (Entered: 02/20/2018)
2018-02-21MINUTE ORDER. In light of the parties' 12 joint status report, it is ORDERED that the parties' proposed briefing schedule is adopted. Defendant shall file a motion for summary judgment on or before April 27, 2018; Plaintiff shall file an opposition and cross-motion for summary judgment on or before May 30, 2018; Defendant shall file a reply and opposition on or before July 2, 2018; and Plaintiff shall file a cross-reply on or before July 30, 2018. Signed by Judge Dabney L. Friedrich on February 21, 2018. (MJS) (Entered: 02/21/2018)
2018-02-22Set/Reset Deadlines: Summary Judgment motions due by 4/27/2018. Cross Motion for summary judgment due by 5/30/2018. Reply and opposition due by 7/2/2018. Cross reply due by 7/30/2018. (jl) (Entered: 02/22/2018)
2018-04-2713MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration, # 4 Exhibit, # 5 Text of Proposed Order)(Drezner, Michael) (Entered: 04/27/2018)
2018-05-3014Memorandum in opposition to re 13 MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Declaration of David Sobel, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Statement of Facts, # 10 Text of Proposed Order)(Sobel, David) (Entered: 05/30/2018)
2018-05-3015Cross MOTION for Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Declaration of David Sobel, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Statement of Facts, # 10 Text of Proposed Order)(Sobel, David) (Entered: 05/30/2018)
2018-06-1416Consent MOTION for Extension of Time to File Reply and Opposition by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Drezner, Michael) (Entered: 06/14/2018)
2018-06-14MINUTE ORDER. Upon consideration of the defendant's 16 Consent Motion for Extension of Time, it is ORDERED that the motion is GRANTED. The defendant's reply and opposition shall be filed on or before July 13, 2018 and the plaintiff's reply shall be filed on or before August 14, 2018. Signed by Judge Dabney L. Friedrich on June 14, 2018. (MJS) (Entered: 06/14/2018)
2018-06-14Set/Reset Deadlines: Defendant's reply and opposition due by 7/13/2018. Plaintiff's reply due by 8/14/2018. (jl) (Entered: 06/15/2018)
2018-07-1317Consent MOTION for Extension of Time to File Response/Reply by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Drezner, Michael) (Entered: 07/13/2018)
2018-07-18MINUTE ORDER. Upon consideration of the parties' 17 Consent Motion for Extension of Time, it is ORDERED that the motion is GRANTED. The defendant shall file its reply and opposition on or before July 20, 2018, and the plaintiff shall file its reply on or before August 21, 2018. Signed by Judge Dabney L. Friedrich on July 18, 2018. (MJS) (Entered: 07/18/2018)
2018-07-18Set/Reset Deadlines: Reply and opposition due by 7/20/2018. Plaintiff's reply due by 8/21/2018. (jl) (Entered: 07/18/2018)
2018-07-2018RESPONSE re 15 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1- Declaration of Tracey Riley, # 2 Exhibit 2- Supplemental Declaration of David Hardy)(Drezner, Michael) (Entered: 07/20/2018)
2018-07-2019REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1- Declaration of Tracey Riley, # 2 Exhibit 2- Supplemental Declaration of David Hardy)(Drezner, Michael) (Entered: 07/20/2018)
2018-08-1520Consent MOTION for Extension of Time to File Response/Reply as to 15 Cross MOTION for Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 08/15/2018)
2018-08-15MINUTE ORDER granting the plaintiff's 20 consent motion to extend the time for the filing of the plaintiff's reply memorandum by 15 days. It is ORDERED that the plaintiff shall file its reply on or before September 5, 2018. Signed by Judge Dabney L. Friedrich on August 15, 2018. (lcdlf2) (Entered: 08/15/2018)
2018-09-0521REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Declaration Supplemental Declaration of David Sobel, # 2 Exhibit 1 to Supp. Sobel Decl., # 3 Exhibit 2 to Supp. Sobel Decl., # 4 Exhibit 3 to Supp. Sobel Decl., # 5 Exhibit 4 to Supp. Sobel Decl., # 6 Exhibit 5 to Supp. Sobel Decl.)(Sobel, David) (Entered: 09/05/2018)
2019-03-0522NOTICE OF SUPPLEMENTAL AUTHORITY by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Exhibit)(Sobel, David) (Entered: 03/05/2019)
2019-03-1323RESPONSE re 22 to Notice of Supplemental Authority filed by DEPARTMENT OF JUSTICE. (Drezner, Michael); Modified to add link on 3/14/2019 (tth). (Entered: 03/13/2019)
2019-04-1724ORDER granting in part and denying in part the government's 13 Motion for Summary Judgment, denying the plaintiff's 15 Cross-Motion for Summary Judgment, and directing the parties to file a joint status report on or before May 3, 2019. See text for details. Signed by Judge Dabney L. Friedrich on April 17, 2019. (lcdlf2) (Entered: 04/17/2019)
2019-04-17Set/Reset Deadlines: Joint Status Report due by 5/3/2019. (mac) (Entered: 04/17/2019)
2019-05-0325Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Drezner, Michael) (Entered: 05/03/2019)
2019-05-06MINUTE ORDER. Upon consideration of the parties' 25 Joint Status Report, it is ORDERED that the parties shall file another joint status report on or before July 5, 2019 and every 60 days thereafter. Signed by Judge Dabney L. Friedrich on May 6, 2019. (lcdlf2) (Entered: 05/06/2019)
2019-05-06Set/Reset Deadlines: Joint Status Report due by 7/5/2019. (zcal) (Entered: 05/06/2019)
2019-07-0226Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Drezner, Michael) (Entered: 07/02/2019)
2019-07-02MINUTE ORDER. Upon consideration of the parties' 26 Joint Status Report, it is ORDERED that the parties shall submit another joint status report on or before September 3, 2019. Signed by Judge Dabney L. Friedrich on July 2, 2019. (lcdlf2) (Entered: 07/02/2019)
2019-07-02Set/Reset Deadlines: Joint Status Report due by 9/3/2019. (zcal) (Entered: 07/02/2019)
2019-09-0327Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Drezner, Michael) (Entered: 09/03/2019)
2019-09-03MINUTE ORDER. Upon consideration of the parties' 27 Joint Status Report, it is ORDERED that the parties shall submit another joint status report on or before October 4, 2019. So Ordered by Judge Dabney L. Friedrich on September 3, 2019. (lcdlf2) (Entered: 09/03/2019)
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