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Elec. Frontier Found. V. DOJ, No. 16-02041, 2019 WL 1369922 (N.D. Cal. Mar. 26, 2019) (Gilliam, Jr., J.)


Elec. Frontier Found. V. DOJ, No. 16-02041, 2019 WL 1369922 (N.D. Cal. Mar. 26, 2019) (Gilliam, Jr., J.)

Re:  Request for records concerning applications to Federal Intelligence Surveillance Court ('FISC') and related opinions and orders

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

  • Exemption 1:  First, "[a]lthough Plaintiff presents a creative argument, the Court agrees with Defendant that Plaintiff cannot enforce Section 402[, which requires conditional declassification of certain FISC and FISCR opinions,] through this FOIA action."  "Absent clear evidence that Congress intended Section 402 to be applied when reviewing FOIA exemptions, the Court will not impute such an intent to hybridize two statutory schemes."  The court finds that "[t]he purpose of Section 402 was to allow for more transparency of FISC and FISCR opinions by requiring the Director of National Intelligence and the Attorney General to release information that they determined were not classified, not to override 'the ability of the government to claim proper FOIA exemptions.'"

    Additionally, "[t]he Court finds that the government has carried its burden to demonstrate that it properly classified the six opinions under Exemption 1."  "The Gaviria Declaration describes in detail the categories of information in the six documents and how disclosure of the material could cause damage to national security."  "Disclosure could reveal critical information about the intelligence community, including its targets, methods, limitations, resources, and sources."  "[Defendant] attests that the withheld documents identify, or tend to reveal the identities of, targets from which communications were collected or targeted under FISA."  "Disclosure of these identities would alert these targets to take countermeasures to avoid surveillance and could also provide adversaries with valuable insight into the intelligence community's methods."
  • Exemption 3:  "The Court is similarly satisfied that the withheld records would disclose intelligence sources, methods, and information about the function and activities of the NSA."  "The detail provided under Exemption 1 demonstrates that the government also properly withheld the six opinions under Exemption 3."  "Because each of the categories of information described in Exemption 1 relates to NSA's intelligence gathering activities, that information falls within Section 102A(i)(1) and Section 6 of the NSA Acts and are properly withheld under Exemption 3."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court . . . finds that Defendant has adequately shown that it 'properly withheld and segregated' the documents in question."  The court holds that "[defendant] represents that the multiple agencies, in preparing for Defendant's motion for partial summary judgment, reviewed the documents 'line by line,' demonstrating that there was an extensive and thorough review process."  "Defendant also provided a description as to why it withheld particular documents and how information could be deduced if certain information was redacted instead of fully withheld."
  • Litigation Considerations, Vaughn Index/Declaration:  "The Court finds that the Vaughn index is adequate."  "The substance of the Declarations was detailed and specific . . . ."  "[Defendant's'] Declarations do not include boilerplate or categorical descriptions but instead provide sufficient detail for the Court to adequately review the 'soundness of the withholding.'"
  • Litigation Considerations, In Camera Inspection:  "The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in [its] Declarations."
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Litigation Considerations, In Camera Inspection
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 16, 2021