Case Detail

FOIA Project Annotation: Judge Timothy Kelly has ruled that the Department of Defense failed to show that records concerning the Algorithmic Warfare Cross-Functional Team's use of Google technology, software or hardware were protected under Exemption 3 (other statutes) in response to a FOIA request from Sam Biddle. In response to Biddle's request, the Defense Department invoked 10 U.S.C. § 130e, which allows the agency to withhold "critical infrastructure security information." Finding that the agency's affidavit fell short, Kelly noted that "it has provided almost no specific information about the 5,000 pages it seeks to withhold for the Court to determine whether they are in fact 'critical infrastructure security information' and qualify for Exemption 3 withholding." Kelly indicated that the requested records discussed artificial intelligence. He pointed out that "the Court is left to wonder how 'the Department's approach to artificial intelligence development and implementation' qualifies as 'critical infrastructure' under the statute. Indeed, an 'approach' is not usually considered 'infrastructure.' In addition, revealing 'capabilities' â€" rather than 'vulnerabilities' â€" does not appear to move the needle under the statute." He indicated that "all [the agency] provides are 'broad and vague descriptions' of the information that make it impossible for the Court to conduct its requisite de novo review over the Department's decision to withhold that information as 'critical infrastructure security information.'" Kelly faulted the agency for alluding to other applicable exemptions â€" like Exemption 4 (commercial and confidential), Exemption 5 (privileges), and Exemption 6 (invasion of privacy) â€" without actually invoking them as well. Sending the case back to the agency for further supplementation, Kelly observed that "the Court advises the Department that when it files its renewed motion, it must address any additional FOIA exemptions it wishes to invoke."
Issues: Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2023-05-16	1	COMPLAINT against U.S. DEPARTMENT OF DEFENSE ( Filing fee $ 402 receipt number ADCDC-10071093) filed by SAM BIDDLE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Civil Cover Sheet, # 11 Summons (United States Attorney's Office), # 12 Summons (U.S. Department of Defense), # 13 Summons (United States Attorney General))(Britz, Benjamin) Modified on 5/17/2023 to add filing fee information (zsl). (Entered: 05/16/2023)
2023-05-17		Case Assigned to Judge Timothy J. Kelly. (zsl) (Entered: 05/17/2023)
2023-05-17	2	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsl) (Entered: 05/17/2023)
2023-05-17	3	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Stephen A. Fowler, Filing fee $ 100, receipt number ADCDC-10075909. Fee Status: Fee Paid. by SAM BIDDLE. (Attachments: # 1 Declaration of Stephen A. Fowler, # 2 Exhibit 1 (Certificate of Good Standing))(Britz, Benjamin) (Entered: 05/17/2023)
2023-05-17	4	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Justin Pendleton, Filing fee $ 100, receipt number ADCDC-10075953. Fee Status: Fee Paid. by SAM BIDDLE. (Attachments: # 1 Declaration of Justin Pendleton, # 2 Exhibit 1 (Certificate of Good Standing))(Britz, Benjamin) (Entered: 05/17/2023)
2023-05-18		MINUTE ORDER granting Plaintiffs' 3 4 Motions for Leave to Appear Pro Hac Vice. Attorneys Stephen A. Fowler and Justin Pendleton are hereby admitted pro hac vice to appear on behalf of Plaintiff. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a) Click for instructions . Signed by Judge Timothy J. Kelly on 5/18/2023. (lctjk2) (Entered: 05/18/2023)
2023-05-24	5	NOTICE of Appearance by Stephen Alexander Fowler on behalf of SAM BIDDLE (Fowler, Stephen) (Entered: 05/24/2023)
2023-05-26	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General May 23, 2023. (Fowler, Stephen) (Entered: 05/26/2023)
2023-05-26	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/22/2023. Answer due for ALL FEDERAL DEFENDANTS by 6/21/2023. (Fowler, Stephen) (Entered: 05/26/2023)
2023-05-26	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF DEFENSE served on 5/22/2023 (Fowler, Stephen) (Entered: 05/26/2023)
2023-06-20	9	NOTICE of Appearance by Stephanie R. Johnson on behalf of U.S. DEPARTMENT OF DEFENSE (Johnson, Stephanie) (Entered: 06/20/2023)
2023-06-21	10	ANSWER to Complaint by U.S. DEPARTMENT OF DEFENSE.(Johnson, Stephanie) (Entered: 06/21/2023)
2023-06-22		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall meet, confer, and file a joint proposed schedule for briefing or disclosure by July 12, 2023. Signed by Judge Timothy J. Kelly on 6/22/2023. (lctjk2) (Entered: 06/22/2023)
2023-06-27	11	NOTICE of Appearance by Justin Pendleton on behalf of SAM BIDDLE (Pendleton, Justin) (Entered: 06/27/2023)
2023-07-12	12	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Johnson, Stephanie) (Entered: 07/12/2023)
2023-07-13		MINUTE ORDER: Upon consideration of the parties' 12 Joint Status Report, it is hereby ORDERED that the following schedule shall govern summary-judgment briefing in this case: Defendant shall file its motion for summary judgment by September 11, 2023; Plaintiff shall file his combined opposition and cross-motion for summary judgment by November 10, 2023; Defendant shall file its combined reply and cross-opposition by December 11, 2023; and Plaintiff shall file his cross-reply by January 10, 2024. Signed by Judge Timothy J. Kelly on 7/13/2023. (lctjk2) (Entered: 07/13/2023)
2023-09-06	13	Unopposed MOTION for Extension of Time to File Motion for Summary Judgment , Unopposed MOTION to Modify Briefing Schedule by U.S. DEPARTMENT OF DEFENSE. (Johnson, Stephanie) (Entered: 09/06/2023)
2023-09-08		MINUTE ORDER granting Defendant's 13 Unopposed Motion for Extension of Time to File Their Motion for Summary Judgment and Motion to Modify the Briefing Schedule. It is hereby ORDERED, for good cause shown, that Defendant's 13 Unopposed Motion is GRANTED. It is further ORDERED that the deadlines in the Minute Order of July 13, 2023, are VACATED, and the following schedule shall govern summary-judgment briefing in this case: Defendant shall file its motion for summary judgment by October 11, 2023; Plaintiff shall file his combined opposition and cross-motion for summary judgment by December 11, 2023; Defendant shall file its combined reply and cross-opposition by January 10, 2024; and Plaintiff shall file his cross-reply by February 9, 2024. Signed by Judge Timothy J. Kelly on 9/8/2023. (lctjk2) (Entered: 09/08/2023)
2023-10-11	14	MOTION for Summary Judgment by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration of Mark H. Herrington)(Johnson, Stephanie) (Entered: 10/11/2023)
2023-12-08	15	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Evan D. Cooper, Filing Fee $100; receipt number ADCDC-10547583. by SAM BIDDLE. (Attachments: # 1 Declaration of Evan D. Cooper in Support of Motion for Admission Pro Hac Vice, # 2 Certificate of Good Standing)(Britz, Benjamin) Modified to add payment information on 12/11/2023 (znmw). (Entered: 12/08/2023)
2023-12-11		MINUTE ORDER granting Plaintiff's 15 Motion for Leave to Appear Pro Hac Vice. It is hereby ORDERED that Plaintiff's 15 Motion is GRANTED. Attorney Evan D. Cooper is hereby admitted pro hac vice on behalf of Plaintiff. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a) Click for instructions . Signed by Judge Timothy J. Kelly on 12/11/2023. (lctjk2) (Entered: 12/11/2023)
2023-12-11	16	Memorandum in opposition to re 14 Motion for Summary Judgment filed by SAM BIDDLE. (Attachments: # 1 [PROPOSED] ORDER, # 2 [ALTERNATIVE PROPOSED] ORDER, # 3 PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF MATERIAL FACTS AND STATEMENT OF ADDITIONAL MATERIAL UNDISPUTED FACTS, # 4 CERTIFICATE OF SERVICE, # 5 DECLARATION OF JUSTIN PENDLETON, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10, # 16 Exhibit 11, # 17 Exhibit 12, # 18 Exhibit 13, # 19 Exhibit 14, # 20 Exhibit 15, # 21 Exhibit 16, # 22 Exhibit 17, # 23 Exhibit 18, # 24 Exhibit 19, # 25 Exhibit 20, # 26 Exhibit 21, # 27 Exhibit 22, # 28 Exhibit 23, # 29 Exhibit 24, # 30 Exhibit 25)(Britz, Benjamin) (Entered: 12/11/2023)
2023-12-11	17	Cross MOTION for Summary Judgment by SAM BIDDLE. (Attachments: # 1 PLAINTIFFS COMBINED STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT, # 2 [PROPOSED] ORDER, # 3 [ALTERNATIVE PROPOSED] ORDER, # 4 PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF MATERIAL FACTS AND STATEMENT OF ADDITIONAL MATERIAL UNDISPUTED FACTS, # 5 CERTIFICATE OF SERVICE, # 6 DECLARATION OF JUSTIN PENDLETON, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25)(Britz, Benjamin) (Entered: 12/11/2023)
2024-01-08	18	Unopposed MOTION for Extension of Time to File Defendant's Combined Reply and Opposition , Unopposed MOTION to Modify Briefing Schedule by U.S. DEPARTMENT OF DEFENSE. (Johnson, Stephanie) (Entered: 01/08/2024)
2024-01-09		MINUTE ORDER granting Defendant's 18 Unopposed Motion for Extension of Time and to Modify the Briefing Schedule. Upon consideration of Defendant's 18 Unopposed Motion, and for good cause shown, it is hereby ORDERED that the Unopposed Motion is GRANTED. Defendant shall file its combined reply and cross-opposition by February 16, 2024, and Plaintiff shall file his cross-reply by March 25, 2024. Signed by Judge Timothy J. Kelly on 1/9/2024. (lctjk2) (Entered: 01/09/2024)
2024-02-15	19	Unopposed MOTION for Extension of Time to File Reply and Opposition , Unopposed MOTION to Modify Briefing Schedule by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Johnson, Stephanie) (Entered: 02/15/2024)
2024-02-16		MINUTE ORDER granting Defendant's 19 Unopposed Motion for Extension of Time and to Modify the Briefing Schedule. Upon consideration of Defendant's 19 Unopposed Motion, and for good cause shown, it is hereby ORDERED that the Unopposed Motion is GRANTED. Defendant shall file its combined reply and cross-opposition by February 21, 2024, and Plaintiff shall file his cross-reply by April 1, 2024. Signed by Judge Timothy J. Kelly on 2/16/2024. (lctjk2) (Entered: 02/16/2024)
2024-02-16		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 2/21/2024. (zkh) (Entered: 02/16/2024)
2024-02-21	20	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Response to Plaintiff's Statement of Facts)(Johnson, Stephanie) (Entered: 02/21/2024)
2024-02-21	21	Memorandum in opposition to re 17 Motion for Summary Judgment,,, filed by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Response to Plaintiff's Statement of Facts)(Johnson, Stephanie) (Entered: 02/21/2024)
2024-04-01	22	REPLY to opposition to motion re 17 Cross MOTION for Summary Judgment filed by SAM BIDDLE. (Britz, Benjamin) (Entered: 04/01/2024)
2024-04-01	23	NOTICE of Appearance by Evan Cooper on behalf of SAM BIDDLE (Cooper, Evan) (Entered: 04/01/2024)
2024-09-13	24	MEMORANDUM ORDER denying Defendant's 14 Motion for Summary Judgment and Plaintiff's 17 Cross-Motion for Summary Judgment without prejudice and ordering the parties to meet, confer, and submit a joint schedule for briefing renewed motions for summary judgment by October 15, 2024. See Memorandum Order for details. Signed by Judge Timothy J. Kelly on 9/13/2024. (lctjk2) (Entered: 09/13/2024)
2024-09-13		Set/Reset Deadlines: Proposed Briefing Schedule due by 10/15/2024. (zkh) (Entered: 09/13/2024)
2024-10-15	25	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Johnson, Stephanie) (Entered: 10/15/2024)
2024-10-16		MINUTE ORDER: Upon consideration of the parties' 25 Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report by November 22, 2024, updating the Court on the status of the Defendant's response to Plaintiff's FOIA request. Signed by Judge Timothy J. Kelly on 10/16/2024. (lctjk2) (Entered: 10/16/2024)
2024-11-21	26	NOTICE OF WITHDRAWAL OF APPEARANCE as to SAM BIDDLE. Attorney Benjamin Stuart Britz terminated. (Britz, Benjamin) (Entered: 11/21/2024)
2024-11-21	27	NOTICE of Appearance by Sean M. Reilly on behalf of SAM BIDDLE (Reilly, Sean) (Entered: 11/21/2024)
2024-11-21	28	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Johnson, Stephanie) (Entered: 11/21/2024)
2024-11-25		MINUTE ORDER: Upon consideration of the parties' 28 Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report by January 22, 2025, including, if necessary, a joint schedule for briefing or disclosure. Signed by Judge Timothy J. Kelly on 11/25/2024. (lctjk2) (Entered: 11/25/2024)
2025-01-21	29	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Johnson, Stephanie) (Entered: 01/21/2025)
2025-01-22		MINUTE ORDER: Upon consideration of the parties' 29 Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report by March 21, 2025, including, if necessary, a joint schedule for briefing or disclosure. Signed by Judge Timothy J. Kelly on 1/22/2025. (lctjk2) (Entered: 01/22/2025)
2025-03-20	30	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Johnson, Stephanie) (Entered: 03/20/2025)
2025-03-21		MINUTE ORDER: Upon consideration of the parties' 30 Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report by April 21, 2025, including, if necessary, a joint schedule for briefing or disclosure. Signed by Judge Timothy J. Kelly on 3/21/2025. (lctjk2) (Entered: 03/21/2025)
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