Case Detail

FOIA Project Annotation: A federal court in California has ruled that the National Security Agency properly redacted portions of a single document responsive to EFF's request for development and implementation of a Vulnerabilities Equity Processâ€"a set of protocols and principles used by the government in deciding whether and when to disclose computer security flawsâ€"under Exemption 1 (national security), Exemption 3 (other statutes) and Exemption 5 (privileges). At EFF's request, the court reviewed the document in camera, concluding the agency's claims were appropriate. Most of the redactions had been made under Exemption 1 and Exemption 3. EFF argued that some of the withheld information had likely been publicly acknowledged. The court noted that "here, EFF (like most FOIA plaintiffs) is operating at the disadvantage of not knowing with certainty what information lies beneath the redactions in the VEP document. Based on context, EFF has constructed an argument that the withheld information likely matches and is of equivalent specificity to certain proper official disclosures. Although EFF's speculation was not necessarily unreasonable given what it could view in the VEP document, in camera review of the classified declaration, subsequently confirmed by in camera review of the entire VEP document itself, established that the redacted 'information' has not been previously 'officially acknowledged' or disclosed such that the exemptions may no longer be claimed." EFF argued that header information was no longer privileged because it had been adopted as a final decision. The court pointed out that "EFF is not wrong to consider the header as roughly analogous to a separate pre-decisional memorandum containing recommendations regarding the VEP document. As such, however, it does not lose its protection merely because the VEP document was adopted as a final policy." The court explained that "the header here is not an embodiment of the Vulnerabilities Equity Process, but a reflection of the 'group thinking' involved in 'working out' what that policy would beâ€"a policy then expressed and embodied in the balance of the VEP document. Had the contents of the header been stated on a separate cover memo stapled to the VEP document as it circulated prior to adoption, there would be no dispute that Exemption 5 applied. The fact that it was printed on top of each page instead does not change the substance of the analysis."
Issues: Exemption 1 - Harm to national security, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Litigation - In camera review

Date Filed	Doc #	Docket Text
2014-07-01	1	COMPLAINT for Injunctive Relief against National Security Agency, Office of the Director of National Intelligence (Filing fee $ 400.00, receipt number 0971-8737242.). Filed by Electronic Frontier Foundation. (Attachments: # 1 Civil Cover Sheet)(Crocker, Andrew) (Filed on 7/1/2014) Modified on 7/1/2014 (gbaS, COURT STAFF). (Entered: 07/01/2014)
2014-07-01	2	Proposed Summons. (Crocker, Andrew) (Filed on 7/1/2014) (Entered: 07/01/2014)
2014-07-01	3	Certificate of Interested Entities by Electronic Frontier Foundation (Crocker, Andrew) (Filed on 7/1/2014) (Entered: 07/01/2014)
2014-07-01	4	Case assigned to Magistrate Judge Joseph C. Spero. 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. (ha, COURT STAFF) (Filed on 7/1/2014) (Entered: 07/01/2014)
2014-07-01	5	NOTICE of Appearance by Nathan Daniel Cardozo (Cardozo, Nathan) (Filed on 7/1/2014) (Entered: 07/01/2014)
2014-07-01	6	NOTICE of Appearance by Mark Thomas Rumold (Rumold, Mark) (Filed on 7/1/2014) (Entered: 07/01/2014)
2014-07-01	7	Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 9/26/2014. Case Management Conference set for 10/3/2014 02:00 PM in Courtroom G, 15th Floor, San Francisco. (Attachments: # 1 Standing Order) (gbaS, COURT STAFF) (Filed on 7/1/2014) (Entered: 07/01/2014)
2014-07-01	8	Summons Issued as to National Security Agency, Office of the Director of National Intelligence. (gbaS, COURT STAFF) (Filed on 7/1/2014) (Entered: 07/01/2014)
2014-07-14	9	SUMMONS Returned Executed (FOIA) by Electronic Frontier Foundation. National Security Agency served on 7/3/2014, answer due 8/4/2014; Office of the Director of National Intelligence served on 7/3/2014, answer due 8/4/2014. (Crocker, Andrew) (Filed on 7/14/2014) (Entered: 07/14/2014)
2014-07-22	10	CLERK'S NOTICE Re: Consent or Declination: Plaintiff shall file a consent or declination to proceed before a magistrate judge within 14 days of this notice. (Party/parties were also notified via telephone or email.) (klhS, COURT STAFF) (Filed on 7/22/2014) (Entered: 07/22/2014)
2014-07-31	11	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Electronic Frontier Foundation.. (Crocker, Andrew) (Filed on 7/31/2014) (Entered: 07/31/2014)
2014-08-04	12	ANSWER to Complaint byNational Security Agency, Office of the Director of National Intelligence. (Coleman Snead, Jacqueline) (Filed on 8/4/2014) (Entered: 08/04/2014)
2014-08-05	13	CLERK'S NOTICE Re: Consent or Declination: Defendants shall file a consent or declination to proceed before a magistrate judge within 14 days of this notice. (Party/parties were also notified via telephone or email.) (klhS, COURT STAFF) (Filed on 8/5/2014) (Entered: 08/05/2014)
2014-08-08	14	CERTIFICATE OF SERVICE by Electronic Frontier Foundation (Crocker, Andrew) (Filed on 8/8/2014) (Entered: 08/08/2014)
2014-08-13	15	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by National Security Agency, Office of the Director of National Intelligence.. (Coleman Snead, Jacqueline) (Filed on 8/13/2014) (Entered: 08/13/2014)
2014-08-13	16	CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (klhS, COURT STAFF) (Filed on 8/13/2014) (Entered: 08/13/2014)
2014-08-14	17	ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Richard Seeborg for all further proceedings. Magistrate Judge Joseph C. Spero no longer assigned to the case.. Signed by Executive Committee on 8/14/14. (as, COURT STAFF) (Filed on 8/14/2014) (Entered: 08/14/2014)
2014-08-14	18	CLERKS NOTICE SCHEDULING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 11/6/2014. Case Management Conference set for 11/13/2014 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (cl, COURT STAFF) (Filed on 8/14/2014) (Entered: 08/14/2014)
2014-10-21	19	STIPULATION WITH PROPOSED ORDER Setting Production Schedule and Staying Proceedings filed by Electronic Frontier Foundation. (Crocker, Andrew) (Filed on 10/21/2014) (Entered: 10/21/2014)
2014-10-22	20	ORDER by Judge Richard Seeborg on 19 Stipulation Setting Production Schedule and Staying Proceedings Until April 20, 2015. The Case Management Conference set for 11/13/2014 will be continued to 4/30/2015 at 10:00 a.m. (mklS, COURT STAFF) (Filed on 10/22/2014) Modified on 10/22/2014 (mklS, COURT STAFF). (Entered: 10/22/2014)
2015-02-10	21	CLERK'S NOTICE RESCHEDULING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 5/14/2015. Case Management Conference previously set for 4/30/2015 has been Rescheduled to 5/21/2015 10:00 AM in Courtroom 3, 17th Floor, San Francisco. This is a text only entry. There is no document associated with this notice. (cl, COURT STAFF) (Filed on 2/10/2015) (Entered: 02/10/2015)
2015-05-06	22	Consent MOTION to Appear by Telephone at Initial Case Management Conference filed by National Security Agency, Office of the Director of National Intelligence. (Coleman Snead, Jacqueline) (Filed on 5/6/2015) (Entered: 05/06/2015)
2015-05-06	23	CLERK'S NOTICE The Case Management Conference set for 5/21/2015 will be held at 11:00 AM. All parties shall appear telephonically and must contact Court Conference at (866)582-6878 at least one week prior to the Conference to arrange their participation. This is a text only entry. There is no document associated with this notice.(rslc2S, COURT STAFF) (Filed on 5/6/2015) (Entered: 05/06/2015)
2015-05-14	24	JOINT CASE MANAGEMENT STATEMENT filed by Electronic Frontier Foundation. (Crocker, Andrew) (Filed on 5/14/2015) (Entered: 05/14/2015)
2015-05-19	25	ORDER ADOPTING PROPOSED BRIEFING SCHEDULE AND VACATING CASE MANAGEMENT CONFERENCE. Signed by Judge Richard Seeborg on 5/19/15. (cl, COURT STAFF) (Filed on 5/19/2015) (Entered: 05/19/2015)
2015-08-11	26	NOTICE of Appearance by Julia Alexandra Berman (Berman, Julia) (Filed on 8/11/2015) (Entered: 08/11/2015)
2015-08-11	27	STIPULATION WITH PROPOSED ORDER Stipulated Request for Continuance of Summary Judgment Briefing to Permit Reprocessing of Document and Proposed Order filed by National Security Agency, Office of the Director of National Intelligence. (Berman, Julia) (Filed on 8/11/2015) (Entered: 08/11/2015)
2015-08-12	28	STIPULATION AND ORDER re 27 STIPULATION WITH PROPOSED ORDER Stipulated Request for Continuance of Summary Judgment Briefing to Permit Reprocessing of Document and Proposed Order . Signed by Judge Richard Seeborg on 8/11/15. (cl, COURT STAFF) (Filed on 8/12/2015) (Entered: 08/12/2015)
2015-08-21	29	NOTICE of Appearance by Rodney Patton (Patton, Rodney) (Filed on 8/21/2015) (Entered: 08/21/2015)
2015-09-25	30	STATUS REPORT and Stipulated Request to Set a Briefing Schedule by National Security Agency, Office of the Director of National Intelligence. (Berman, Julia) (Filed on 9/25/2015) (Entered: 09/25/2015)
2015-09-29	31	ORDER on stipulated request to set a briefing schedule. Signed by Judge Richard Seeborg on 9/29/15. (cl, COURT STAFF) (Filed on 9/29/2015) (Entered: 09/29/2015)
2015-10-30	32	MOTION for Summary Judgment filed by National Security Agency, Office of the Director of National Intelligence. Motion Hearing set for 2/17/2016 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 12/4/2015. Replies due by 1/8/2016. (Attachments: # 1 Memorandum in Suppot, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Proposed Order)(Patton, Rodney) (Filed on 10/30/2015) (Entered: 10/30/2015)
2015-11-05	33	CLERK'S NOTICE CONTINUING MOTION HEARING. Motion Hearing previously set for 2/17/2016 Continued to 2/18/2016 at 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. (This is a text-only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 11/5/2015) (Entered: 11/05/2015)
2015-12-04	34	Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment filed by Electronic Frontier Foundation. Motion Hearing set for 2/18/2015 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 1/8/2015. Replies due by 1/22/2015. (Attachments: # 1 Declaration of Andrew Crocker, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Proposed Order)(Crocker, Andrew) (Filed on 12/4/2015) (Entered: 12/04/2015)
2015-12-08		Reset Hearing to reflect correct year as to 34 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment . Motion Hearing set for 2/18/2016 at 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. (cl, COURT STAFF) (Filed on 12/8/2015) (Entered: 12/08/2015)
2016-01-06	35	STIPULATION to Extend Deadlines By Four Business Days for Filing Briefs filed by National Security Agency, Office of the Director of National Intelligence. (Patton, Rodney) (Filed on 1/6/2016) (Entered: 01/06/2016)
2016-01-07	36	STIPULATION AND ORDER TO EXTEND BY FOUR BUSINESS DAYS DEFENDANTS' DEADLINE TO FILE THEIR REPLY IN SUPPORT OF THEIR SUMMARY JUDGMENT MOTION AND THEIR OPPOSITION TO PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT. Signed by Judge Richard Seeborg on 1/7/16. (cl, COURT STAFF) (Filed on 1/7/2016) (Entered: 01/07/2016)
2016-01-14	37	REPLY (re 34 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment , 32 MOTION for Summary Judgment ) filed byNational Security Agency, Office of the Director of National Intelligence. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Patton, Rodney) (Filed on 1/14/2016) (Entered: 01/14/2016)
2016-01-14	38	NOTICE by National Security Agency, Office of the Director of National Intelligence re 37 Reply to Opposition/Response, Notice of Lodging of Classified Declaration (Patton, Rodney) (Filed on 1/14/2016) (Entered: 01/14/2016)
2016-01-28	39	REPLY (re 34 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment ) filed byElectronic Frontier Foundation. (Crocker, Andrew) (Filed on 1/28/2016) (Entered: 01/28/2016)
2016-02-18	40	Minute Entry for proceedings held before Hon. Richard Seeborg: Motion Hearing held on 2/18/2016. Total Time in Court 1 hour 30 min.. Court Reporter Name Rhonda Aquilina. (cl, COURT STAFF) (Date Filed: 2/18/2016) (Entered: 02/18/2016)
2016-03-17	41	ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT by Judge Richard Seeborg denying 34 Motion for Summary Judgment; granting 32 Motion for Summary Judgment.(cl, COURT STAFF) (Filed on 3/17/2016) (Entered: 03/17/2016)
2016-04-07	42	Consent MOTION for Extension of Time to File Nunc Pro Tunc Motion for One Day Extension of Time to File Proposed Final Judgment filed by National Security Agency, Office of the Director of National Intelligence. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 4/7/2016) (Entered: 04/07/2016)
2016-04-07	43	RESPONSE to March 17, 2016 Order - Submission of Proposed Final Judgment by National Security Agency, Office of the Director of National Intelligence. (Attachments: # 1 Proposed Final Judgment)(Berman, Julia) (Filed on 4/7/2016) (Entered: 04/07/2016)
2016-04-07	44	ORDER by Judge Richard Seeborg granting 42 Motion for Extension of Time to File.(cl, COURT STAFF) (Filed on 4/7/2016) (Entered: 04/07/2016)
2016-04-07	45	FINAL JUDGMENT. Signed by Judge Richard Seeborg on 4/7/16. (cl, COURT STAFF) (Filed on 4/7/2016) (Entered: 04/07/2016)
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