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