Case Detail

FOIA Project Annotation: The judge ordered the FBI to file electronically under seal an unredacted version of its most recent in camera ex parte declaration.

FOIA Project Annotation: A federal court in California has ruled that the FBI properly relied on a classified in camera affidavit to justify its use of Exemption 7(E) (investigative methods and techniques) to withhold records pertaining to the agency's visit to Hesham Abu Zubaidah, the brother of a Guantanamo Bay detainee, in an attempt to try to persuade him to rescind the Privacy Act waiver he had provided to Truthout. Truthout requested records about Zubaidah, who lived in California, and provided his Privacy Act waiver. The same day it acknowledged receipt of the Truthout request, the FBI visited Zubaidah to persuade him to rescind his Privacy Act waiver. After Truthout learned of the interview of Zubaidah, it requested records concerning any other instances in which the agency tried to persuade individuals to rescind Privacy Act waivers. The FBI responded by indicating that the existence of such a policy was protected by Exemption 7(E). Truthout argued that the Ninth Circuit's decision in Lion Raisins v. Dept of Agriculture, 354 F.3d 1072 (9th Cir. 2004), required agencies to justify their decisions to the greatest extent on the public record. While the court agreed, it noted that "the DOJ has not run afoul of Lion Raisins here. Having reviewed the unredacted [FBI] declaration, the court is satisfied that the government 'has submitted as much detail in the form of public affidavits and testimony as possible' in the form of the redacted [FBI] declaration." The court added that although the FBI had failed to provide a Vaughn index, doing so would have revealed the information it sought to protect. The court pointed out that "the withheld documents meet the criteria outlined in FOIA Exemption 7(E)" and noted that "I am bound by the FOIA statute in reaching this conclusion." The court observed that "nonetheless, the court must state that [the FBI's] unredacted declaration is the quintessence of bureaucratic obfuscation," quoting George Orwell's reference to bureaucratic language as "hackneyed."
Issues: Exemption 7(E) - Investigative methods or techniques, Litigation - In camera review

Date Filed	Doc #	Docket Text
2012-10-18	1	COMPLAINT against Department of Justice by Truthout. Attorney Lynch, Jennifer Ann added. (Attachments: # 1 Civil Cover Sheet)(Lynch, Jennifer) (Entered: 10/18/2012)
2012-10-19		RECEIPT number #CAE200048063 $350.00 fbo Truthout by Jennifer Ann Lynch on 10/19/2012. (Mena-Sanchez, L) (Entered: 10/19/2012)
2012-10-19	4	FRCP 7.1 CORPORATE DISCLOSURE CERTIFICATE by Truthout. (Lynch, Jennifer) Modified on 10/22/2012 (Marciel, M) (Entered: 10/19/2012)
2012-10-19	5	SUMMONS ISSUED as to *Department of Justice* with answer to complaint due within *30* days. Attorney *Jennifer Ann Lynch* *Electronic Frontier Foundation* *454 Shotwell Street* *San Francisco, CA 94110*. (Mena-Sanchez, L) (Entered: 10/19/2012)
2012-10-19	6	CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference is SET for 1/22/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Attachments: # 1 Consent to Magistrate Judge, # 2 VDRP) (Mena-Sanchez, L) (Entered: 10/19/2012)
2012-10-31	7	PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Truthout for attorney Kelly McClanahan to appear Pro Hac Vice. (Lynch, Jennifer) (Entered: 10/31/2012)
2012-11-02		RECEIPT number number #CAE200048304 for $200.00 fbo 7 PHV Kelly B. McClanahan Truthout by Kelly B. McClanahan. (Benson, A.) (Entered: 11/02/2012)
2012-11-02	10	CERTIFICATE of SERVICE by Truthout re 6 Civil New Case Documents for LKK, 5 Summons, 1 Complaint. (Lynch, Jennifer) (Entered: 11/02/2012)
2012-11-06	11	PRO HAC VICE ORDER 7 signed by Judge Lawrence K. Karlton on 11/5/12; Attorney Kelly Brian McClanahan, PHV added for Truthout. (Matson, R) (Entered: 11/06/2012)
2012-11-09	12	SUMMONS RETURNED EXECUTED by Truthout. Department of Justice served on 11/5/2012, answer due 1/4/2013. (McClanahan, Kelly) (Entered: 11/09/2012)
2012-12-05	13	ANSWER to 1 Complaint by Department of Justice. Attorney Himel, Yoshinori H. T. added.(Himel, Yoshinori) (Entered: 12/05/2012)
2013-01-08	14	STATUS REPORT by Department of Justice. (Himel, Yoshinori) (Entered: 01/08/2013)
2013-01-08	15	STATUS REPORT by Truthout. (McClanahan, Kelly) (Entered: 01/08/2013)
2013-01-09	16	NOTICE OF ERRATA by Truthout: Request to appear by telephone. (McClanahan, Kelly) Modified on 1/11/2013 (Matson, R). (Entered: 01/09/2013)
2013-01-22	17	MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: SCHEDULING CONFERENCE held on 1/22/2013. Further Status Conference set for 4/1/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Plaintiffs Counsel Kelly B. McClanahan present. Defendants Counsel Yoshinori Himel present. (Rivas, A) (Entered: 01/22/2013)
2013-01-24	18	ORDER signed by Judge Lawrence K. Karlton on 1/23/2013 ORDERING further Status Conference SET for 4/1/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton; parties shall file updated status reports no later than 3/18/2013. (Waggoner, D) (Entered: 01/24/2013)
2013-03-18	19	STATUS REPORT by Department of Justice. (Himel, Yoshinori) (Entered: 03/18/2013)
2013-03-18	20	STATUS REPORT by Truthout. (McClanahan, Kelly) (Entered: 03/18/2013)
2013-04-01	21	MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: SCHEDULING CONFERENCE held on 4/1/2013. Defendant shall bring on a Motion for Summary Judgment by 7/15/2013; Plaintiff to respond 3 weeks thereafter; Defendant to close 2 weeks thereafter. Plaintiffs Counsel Kel McClanahan present. Defendants Counsel Bobbie Montoya present. (Rivas, A) (Entered: 04/01/2013)
2013-04-03	22	STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Lawrence K. Karlton on 4/2/2013: Defendant to bring on Motion for Summary Judgment no later than 7/15/2013. Plaintiff shall respond to Motion w/in 3 weeks and defendant shall reply w/in 2 weeks thereafter. All future date to set, if at all, after resolution of Motion for Summary Judgment. (Marciel, M) (Entered: 04/03/2013)
2013-04-06	23	NOTICE of CHANGE of ADDRESS for Electronic Frontier Foundation filed by Jennifer Ann Lynch. (Lynch, Jennifer) Modified on 4/8/2013 (Marciel, M) (Entered: 04/06/2013)
2013-06-30	24	STIPULATION and [PROPOSED] ORDER Extending Time to File Motion for Summary Judgment by Department of Justice, Truthout. (Himel, Yoshinori) Modified on 7/1/2013 (Mena-Sanchez, L). (Entered: 06/30/2013)
2013-07-03	25	STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 7/2/2013 ORDERING 24 Dispositive Motion re Summary Judgment Motion EXTENDED to 9/9/2013; plaintiff shall respond to the motion by 10/7/2013; defendant reply by 10/21/2013. (Reader, L) (Entered: 07/03/2013)
2013-09-09	26	LETTER to Judge Lawrence K. Karlton regarding arrangements for handling classified documents by Department of Justice. (Himel, Yoshinori) Modified on 9/10/2013 (Marciel, M) (Entered: 09/09/2013)
2013-09-09	27	MOTION for SUMMARY JUDGMENT by Department of Justice. Motion Hearing set for 10/21/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Attachments: # 1 Separate Statement of Undisputed Facts under L.R. 260(a), # 2 Declaration of David M. Hardy & Exhibits A - X, # 3 Hardy Declaration Exhibit Y Part 1, # 4 Hardy Declaration Exhibit Y Part 2, # 5 Notice of Lodging of Materials for use In Camera, Ex Parte) (Himel, Yoshinori) (Attachment 2 replaced with redacted version on 9/10/2013) (Waggoner, D). (Entered: 09/09/2013)
2013-09-10	28	EMERGENCY MOTION to SEAL THREE DOCKET ENTRIES by Truthout. Motion Hearing set for 9/10/2013 at 4:00 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (McClanahan, Kelly) Modified on 9/10/2013 (Marciel, M) (Entered: 09/10/2013)
2013-09-11	29	STATEMENT of NON-OPPOSITION to plaintiff's 28 Emergency Motion to Seal Three Docket Entries by defendant Department of Justice. Attorney Gordon, J. Earlene added. (Gordon, J.) Modified on 9/11/2013 (Marciel, M) (Entered: 09/11/2013)
2013-09-12	30	ORDER signed by Judge Lawrence K. Karlton on 9/11/13 ORDERING that the Plaintiff file a brief in support of the requested redaction and sealing no later than 10/14/13; the Clerk is directed to maintain ECF 27-2 in redacted form and ECF 27-3 and 27-14 under seal until such time as the court orders otherwise. (Manzer, C) (Entered: 09/12/2013)
2013-09-19	31	ORDER signed by Judge Lawrence K. Karlton on 9/18/13 CONTINUING hearing as to 27 Motion for Summary Judgment : Motion Hearing reset for 12/9/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Manzer, C) (Entered: 09/19/2013)
2013-09-23	32	MINUTE ORDER (TEXT ONLY) by Courtroom Deputy A. Rivas. The court hereby modifies its order dated September 18, 2013, (ECF No. 31 .) Based on the stipulation of the parties, the court previously ordered defendant to file its reply by October 21, 2013, (ECF No. 24 .) Accordingly, the final sentence of the September 18 order should read as follows: "The deadlines to file an opposition (October 7, 2013) and a reply, if any (October 21, 2013) are unchanged." Approved by Judge Lawrence K. Karlton on September 23, 2013.(Rivas, A) (Entered: 09/23/2013)
2013-10-07	33	MOTION to STAY re 27 Motion for Summary Judgment, 30 Order, by Truthout. Motion Hearing set for 10/7/2013 at 04:00 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (McClanahan, Kelly) (Entered: 10/07/2013)
2013-10-09	34	ORDER signed by Judge Lawrence K. Karlton on 10/8/13 ORDERING that all hearing dates and filing dates in this matter are VACATED. When defendant and its counsel are permitted to resume their duties in this case, the parties are DIRECTED to meet-and-confer and submit a joint stipulation setting forth a proposed schedule for (i) the hearing on the summary judgment motion, (ii) the hearing on the proposed motion to intervene, and (iii) submission of any briefs that remain due on these motions. (Kastilahn, A) (Entered: 10/09/2013)
2013-10-24	35	NOTICE of Resumption of Appropriations, by All Parties. (Himel, Yoshinori) (Entered: 10/24/2013)
2013-10-29	36	JOINT SCHEDULING REPORT by Department of Justice, Truthout. (McClanahan, Kelly) (Entered: 10/29/2013)
2013-10-31	37	STIPULATION and PROPOSED ORDER for Re: Redaction and Sealing by Department of Justice. (Himel, Yoshinori) (Entered: 10/31/2013)
2013-10-31	38	STIPULATION and PROPOSED ORDER for Re: Hearing and Briefing by Department of Justice. (Himel, Yoshinori) (Entered: 10/31/2013)
2013-11-01	39	STIPULATION and ORDER RE: REDACTION AND SEALING signed by Judge Lawrence K. Karlton on 11/1/2013 ORDERING that the 28 Motion to Seal is WITHDRAWN. (Zignago, K.) (Entered: 11/01/2013)
2013-11-01	40	STIPULATION and ORDER RE: HEARING AND BRIEFING signed by Judge Lawrence K. Karlton on 11/1/2013 ORDERING that the hearing on 27 Motion for Summary Judgment is set for 2/10/2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Opposition is due 11/18/2013. Reply is due 1/6/2014. (Zignago, K.) (Entered: 11/01/2013)
2013-11-01	41	EXHIBIT Y to Hardy Declaration, redacted as agreed by the parties, re 27 Motion for Summary Judgment filed by Department of Justice. (Attachments: # 1 Hardy Declaration Exhibit Y Part 1, # 2 Hardy Declaration Exhibit Y Part 2)(Himel, Yoshinori) (Entered: 11/01/2013)
2013-11-19	42	CONSENT NUNC PRO TUNC MOTION for 16-DAY EXTENSION OF TIME to file Opposition to defendant's 27 Motion for Summary Judgment by Truthout. (McClanahan, Kelly) Modified on 11/19/2013 (Marciel, M) (Entered: 11/19/2013)
2013-11-20	43	STIPULATION and PROPOSED ORDER by all parties changing date for Hearing. (McClanahan, Kelly) Modified on 11/20/2013 (Marciel, M) (Entered: 11/20/2013)
2013-11-21	44	STIPULATION and PROPOSED ORDER resetting Hearing and Briefing for 27 Motion for Summary Judgment by Department of Justice, Truthout. (Himel, Yoshinori) Modified on 11/22/2013 (Marciel, M) (Entered: 11/21/2013)
2013-11-25	45	STIPULATION and ORDER 44 signed by Judge Lawrence K. Karlton on 11/22/13 ORDERING that the hearing on defendant's 27 motion for summary judgment is CONTINUED to 3/17/2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Opposition is due by 12/4/2013. Reply, if any, is due by 1/21/2014. (Kastilahn, A) (Entered: 11/25/2013)
2013-12-04	46	MOTION and PROPOSED ORDER for 6-DAY EXTENSION OF TIME to File Opposition to 27 Motion for Summary Judgment by Truthout. (McClanahan, Kelly) Modified on 12/5/2013 (Kaminski, H). (Entered: 12/04/2013)
2013-12-06	47	ORDER signed by Judge Lawrence K. Karlton on 12/6/2013 ORDERING that Plaintiff is GRANTED an enlargement of time, to and including 12/10/2013, within which to file its Opposition to Defendant's Motion for Summary Judgment. (Zignago, K.) (Entered: 12/06/2013)
2013-12-10	48	MOTION to STAY re 27 Motion for Summary Judgment by Truthout. (McClanahan, Kelly) (Entered: 12/10/2013)
2013-12-12	49	ORDER granting 48 Motion to Stay re 27 Motion for Summary Judgment signed by Judge Lawrence K. Karlton on 12/12/13. (Kaminski, H) (Entered: 12/12/2013)
2013-12-13	50	MOTION to STRIKE, in camera, Ex Parte Hardy Declaration or, in the alternative, to file it on Public Record. Motion Hearing set for 1/27/2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Attachments: # 1 Memorandum, # 2 Proof of Service) (McClanahan, Kelly) Modified on 12/16/2013 (Meuleman, A). (Entered: 12/13/2013)
2014-01-09	51	MINUTE ORDER (TEXT ONLY) by Courtroom Deputy A. Rivas. Pending before the court is Plaintiff's Motion to Strike 50 . The motion is currently set for hearing on January 27, 2014. For administrative reasons, the hearing is CONTINUED to January 31, 2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Briefing deadlines are unchanged, so that the oppositions shall be filed no later than January 13, 2014 at 4:30 p.m., and replies, if any, shall be filed no later than January 17, 2014 at 4:30 p.m. Ordered by Judge Lawrence K. Karlton on January 9, 2014. (Rivas, A) (Entered: 01/09/2014)
2014-01-10	52	OPPOSITION by Department of Justice to 50 MOTION to STRIKE Declaration of David M. Hardy re: 27 Motion for Summary Judgment. (Himel, Yoshinori) (Entered: 01/10/2014)
2014-01-17	53	REPLY by Truthout to RESPONSE to 50 MOTION to STRIKE Declaration of David M. Hardy re: 27 Motion for Summary Judgment. (Attachments: # 1 Certificate of Service)(McClanahan, Kelly) (Entered: 01/17/2014)
2014-01-18	54	MOTION to Participate in Hearing by Telephone or Videoconference re 50 MOTION to STRIKE Declaration of David M. Hardy re: 27 Motion for Summary Judgment by Truthout. Motion Hearing set for 1/21/2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Attachments: # 1 Certificate of Service)(McClanahan, Kelly) (Entered: 01/18/2014)
2014-01-18	55	MOTION for 0.4-DAY EXTENSION OF TIME to File Reply re 53 Reply to Response to Motion by Truthout. (Attachments: # 1 Certificate of service)(McClanahan, Kelly) (Entered: 01/18/2014)
2014-01-22	56	ORDER signed by Judge Lawrence K. Karlton on 1/21/2014 GRANTING 55 Motion for Extension of Time. (Zignago, K.) (Entered: 01/22/2014)
2014-01-27	57	STIPULATION and PROPOSED ORDER for Adjudication of plaintiff's 50 Motion on the Record and Briefs by Truthout. (Attachments: # 1 Certificate of Service) (McClanahan, Kelly) Modified on 1/29/2014 (Marciel, M) (Entered: 01/27/2014)
2014-01-28	58	STATEMENT of NON-OPPOSITION to remove Hearing from calendar by Department of Justice. (Himel, Yoshinori) Modified on 1/29/2014 (Marciel, M) (Entered: 01/28/2014)
2014-01-29	59	STIPULATION and ORDER 57 to vacate 1/31/2014 50 Motion Hearing date signed by Judge Lawrence K. Karlton on 1/28/2014. (Marciel, M) (Entered: 01/29/2014)
2014-03-07	60	ORDER signed by Judge Lawrence K. Karlton on 3/7/2014 VACATING the 3/17/2014 27 Motion for Summary Judgment Hearing. An order will be forthcoming. (Donati, J) (Entered: 03/07/2014)
2014-05-06	61	ORDER signed by Judge Lawrence K. Karlton on 5/5/2014 DENYING plaintiff's 50 Motion for Order striking Ex Parte Declaration of David Hardy from record. Defendant's 27 Motion for Summary Judgment is GRANTED and this matter is CLOSED. (Marciel, M) (Entered: 05/06/2014)
2014-05-06	62	JUDGMENT entered *5/6/2014* in favor of defendant Department of Justice against Truthout pursuant to 61 Order granting Motion for Summary Judgment (Marciel, M) (Entered: 05/06/2014)
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