Electronic Frontier Foundation v. Department of Justice

Filing 21

JOINT CASE MANAGEMENT STATEMENT filed by Electronic Frontier Foundation, Dpeartment of Justice. (Lynch, Jennifer) (Filed on 9/19/2013) Modified on 9/20/2013 (vlk, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 Jennifer Lynch (SBN 240701) jlynch@eff.org ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 David L. Sobel (pro hac vice) sobel@eff.org ELECTRONIC FRONTIER FOUNDATION 1818 N Street, N.W., Suite 410 Washington, DC 20036 Telephone: 415-436-9333 x202 Attorneys for Plaintiff Electronic Frontier Foundation 11 12 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 OAKLAND DIVISION 16 17 18 19 20 21 22 23 ) ELECTRONIC FRONTIER FOUNDATION, ) Case No.: 4:13-cv-2946 PJH ) Plaintiff, ) ) JOINT CASE MANAGEMENT v. ) STATEMENT ) DEPARTMENT OF JUSTICE, ) Date: September 26, 2013 ) Time: 1:45 p.m. Defendant. ) Place: Telephonic Conference ) Judge: Hon. Phyllis J. Hamilton ) ) ) 24 25 26 27 28 JOINT CASE MANAGEMENT STATEMENT Case No.: 13-cv-2946 PJH 1 Plaintiff Electronic Frontier Foundation (“EFF”) and Defendant the United States 2 Department of Justice (“DOJ”) respectfully submit the following joint case management statement. 3 1. Jurisdiction and Related Issues 4 The parties stipulate and agree that (1) venue is properly laid in this District under 5 U.S.C. 5 § 552(a)(4)(B); and (2) that the Court has subject matter jurisdiction over the action pursuant to 6 28 U.S.C. § 1331. No issues exist regarding personal jurisdiction. Defendant has been properly 7 served pursuant to Fed. R. Civ. P. 4(i)(1). 8 2. Facts 9 Between June 25, 2012 and July 5, 2012, Plaintiff sent three FOIA requests via email to the 10 Federal Bureau of Identification (FBI), a component of Defendant DOJ, concerning its use of facial 11 recognition and development of its Next Generation Identification (NGI) system. Each of these 12 requests sought search, review and duplication fee waivers based on EFF’s status as a news media 13 requester and based on the fact that disclosure of the requested information is in the public interest 14 within the meaning of 5 U.S.C. § 552(a)(4)(A)(ii)-(iii). 15 The first request, dated June 25, 2012, sought records related to the FBI’s plans to partner 16 with states to build out its facial recognition database. The request sought all agency records, 17 including electronic records, created from January 1, 2010 to the present discussing, concerning, or 18 reflecting (1) any memorandum of understanding (MOUs) or other similar contracts or agreements 19 between the FBI and any states concerning submitting facial recognition photographs to and 20 retrieving or accessing photographs to the FBI’s NGI database, (2) any discussions between the 21 FBI and any states regarding the state’s participation in a program to submit and/or retrieve facial 22 recognition photographs to the FBI’s NGI database, and (3) any records related to a “Face Report 23 Card,” possibly created by FBI’s NGI Program Office to provide feedback to individual agencies 24 regarding the quality of images submitted to the FBI’s NGI database. 25 The second request, dated July 5, 2012, sought records discussing, concerning, or reflecting 26 (1) developing and/or implementing a “Master Name” or unique identity for civil records or civil 27 and criminal records in the Integrated Automated Fingerprint Identification System (IAIS) or NGI 28 1 JOINT CASE MANAGEMENT STATEMENT Case No.: 13-cv-2946 PJH 1 databases, (2) combining civil and criminal biometric and biographic records in IAFIS or NGI or 2 another repository and discussions related to migrating to an automated identity management 3 structure that would maintain all information about a person in the system in a single records based 4 a unique identity, and (3) rules and policies that govern or define the sharing or dissemination of 5 civil information once civil and criminal records are stored together in a single repository. 6 The third request, dated July 5, 2012, sought records related to the reliability of facial 7 recognition capabilities in the FBI’s Next Generation Identification (NGI) database. Specifically, it 8 sought records discussing, concerning or reflecting (1) any studies, reports, notes, comments, or 9 other records on the reliability of facial recognition biometric data in the NGI database and/or the 10 Face Recognition Pilot (FRP) project in the NGI database, (2) any information on the total current 11 number of face recognition capable records and/or searchable frontal photographs in the database 12 and the proposed number at deployment, and (3) any studies, reports, notes, comments, or other 13 records that discuss specific image quality metrics, best practices, and recommendations regarding 14 quality of images submitted to or enrolled in the system. 15 Although FBI acknowledged receipt of Plaintiff’s first request and assigned it a FOIA 16 Request Number, Defendant did not make a final determination on Plaintiff’s fee waiver request 17 and did not produce any records. After Defendant failed to process or produce records, Plaintiff 18 filed this lawsuit on June 26, 2013. Defendant answered the Complaint on July 26, 2013 (ECF 19 No. 10). 20 Since that time, the parties have been working in good faith in an attempt to resolve some 21 of the issues in this action and to agree on a schedule for the release of information responsive to 22 Plaintiff’s FOIA request. 23 3. 24 This case presents a procedural issue concerning the timing of Defendant’s processing of 25 EFF’s FOIA request. Once Defendant completes processing, the remaining legal issue is whether 26 Defendant has properly withheld records in whole or part under 5 U.S.C. § 552. EFF reserves the 27 right to challenge the adequacy of Defendant’s searches for responsive records after Defendant 28 Legal Issues 2 JOINT CASE MANAGEMENT STATEMENT Case No.: 13-cv-2946 PJH 1 completes processing of EFF’s request and after it files declarations or indices pursuant to Vaughn 2 v. Rosen, 484 F.2d 820, 826-8 (D.C. Cir. 1973). 3 4. Motions 4 There are no prior or pending motions. The parties anticipate that this case is likely to be 5 disposed of on dispositive motions. The parties submit, however, that scheduling any such motion 6 is premature at this time. The parties are currently working in good faith to resolve some of the 7 claims and issues in this action. 8 5. Amendment of Pleadings 9 No party anticipates amending its pleadings to add or dismiss claims or defenses. 10 6. 11 Defendant is taking all reasonable steps to preserve documents responsive to EFF’s FOIA 12 Evidence Preservation request. 13 7. Disclosures 14 The parties agree and stipulate under Federal Rule of Civil Procedure 26(a)(1)(A) that 15 initial disclosures are not necessary, as this is a FOIA action for which there is no need to 16 exchange. 17 8. 18 To date, no discovery has been taken by any party. The parties do not anticipate proposing 19 any limitations or modifications of the discovery rules. Defendant contends that discovery is 20 generally not appropriate in FOIA actions. See Lane v. Dep’t of Interior, 523 F.3d 1128, 1134 (9th 21 Cir. 2008) (stating that in FOIA “cases courts may allow the government to move for summary 22 judgment before the plaintiff conducts discovery”). Discovery 23 9. Class Actions 24 This case is not a class action. 25 10. 26 There are no related cases pending before this Court as defined by Local Rule 3-12. Related Cases 27 28 3 JOINT CASE MANAGEMENT STATEMENT Case No.: 13-cv-2946 PJH 1 11. Relief 2 EFF seeks injunctive relief with respect to the release and disclosure of all records 3 responsive to its FOIA request. EFF also seeks reasonable attorney’s fees incurred in this litigation. 4 Defendant denies that plaintiff is entitled to the relief requested or any relief whatsoever. 5 12. Settlement and ADR 6 The parties believe that the prospect of settlement is low at this time. The parties have 7 conferred about ADR processes in conformance with ADR Local Rule 3-5. The parties believe 8 that this case is not well suited to ADR resolution, and therefore have filed a Notice of Need for 9 ADR Phone Conference pursuant to ADR Local Rule 3-5(c)(2), (ECF No. 15), and an ADR 10 telephone conference has been set for September 23, 2013 (ADR Remark dated Sept. 11, 2013). 11 The parties do intend, however, to meet and confer upon the conclusion of Defendant’s processing 12 in an attempt to narrow the issues in dispute before presenting any such issues to the Court. 13 13. 14 The parties have not agreed to consent to assignment of this case to a magistrate judge. 15 14. 16 The parties agree that this case is not suitable for reference to binding arbitration or a 17 Consent to Magistrate for All Purposes Other References special master, or reference to the Judicial Panel on Multidistrict Litigation. 18 15. Narrowing of Issues 19 The parties have not agreed to narrow the legal issues remaining in this case at this time. No 20 party requests bifurcation of any issues, claims, or defenses. As noted above, the parties anticipate 21 that they will meet and confer upon the completion of Defendant’s processing in an attempt to 22 narrow any issues in dispute before bringing any such dispute before the Court. 23 16. 24 The parties agree that this is not the type of case that can be handled under the Expedited 25 Expedited Trial Procedure Trial Procedure of General Order No. 64 Attachment A. 26 27 28 4 JOINT CASE MANAGEMENT STATEMENT Case No.: 13-cv-2946 PJH 1 17. Scheduling 2 Counsel for the parties spoke by telephone on September 13, 2013 regarding Defendant’s 3 response to Plaintiff’s FOIA request. At that time, Counsel for Defendant confirmed that 4 Defendant would process the first round of responsive records—totaling approximately 500 5 pages—and release non-exempt portions of those records to Plaintiff by October 13, 2013. 6 Defendant would process the second round of responsive records and release non-exempt portions 7 to Plaintiff by November 13, 2013. If any records remain, those would be processed and released to 8 Plaintiff by December 13, 2013. 9 The parties anticipate that, upon the completion of Defendant’s processing, they will meet 10 and confer in an attempt to narrow any issues, and any remaining areas of dispute will be presented 11 to the Court by one or more motions for summary judgment. 12 18. 13 The parties anticipate that this entire case will be resolved by the Court on dispositive 14 Trial motions, and do not anticipate that this case will be decided by a jury. 15 19. 16 Defendant has not filed a Certification of Interested Entities or Persons because Local 17 Rule 3-16 excuses government entities or their agencies from this requirement. EFF filed a 18 Certification of Interested Entities or Persons as required by Local Rule 3-16 stating that, aside 19 from the named parties, there is no interest to report. (ECF No. 19) 20 21 22 20. Disclosure of Non-Party Interested Entities or Persons Other Matters As May Facilitate the Just, Speedy and Inexpensive Disposition of This Matter None. 23 24 25 26 27 28 DATED: September 19, 2013 Respectfully submitted, /s/ Jennifer Lynch ELECTRONIC FRONTIER FOUNDATION Jennifer Lynch, Esq. 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorney for Plaintiff 5 JOINT CASE MANAGEMENT STATEMENT Case No.: 13-cv-2946 PJH 1 2 3 4 5 6 STUART F. DELERY Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Branch Director Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-4960 Facsimile: (202) 616-8470 /s/ Marcia K. Sowles MARCIA K. SOWLES Senior Counsel United States Department of Justice 7 Attorneys for Defendant 8 9 10 11 12 13 14 15 DECLARATION PURSUANT TO CIVIL L. R. 5-1(i)(3) I, Jennifer Lynch, attest that I have obtained the concurrence of Marcia K. Sowles, counsel for Defendant, in the filing of this document. Executed on September 19, 2013, in San Francisco, California. /s/ Jennifer Lynch Jennifer Lynch 16 17 18 19 20 21 22 23 24 25 26 27 28 6 JOINT CASE MANAGEMENT STATEMENT Case No.: 13-cv-2946 PJH

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