Electronic Frontier Foundation v. Department of Justice

Filing 85

ORDER RE: PRODUCTION OF DOCUMENTS FOR IN CAMERA REVIEW. Signed by Judge Yvonne Gonzalez Rogers on 6/13/14. (fs, COURT STAFF) (Filed on 6/13/2014)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

7
8
9

ELECTRONIC FRONTIER FOUNDATION,
Plaintiff,

10
11

Northern District of California

United States District Court

12
13

Case No.: 4:11-cv-05221-YGR
ORDER RE: PRODUCTION OF DOCUMENTS
FOR IN CAMERA REVIEW

vs.
DEPARTMENT OF JUSTICE,
Defendant.

14
15

Presently before the Court are the renewed cross-motions for summary judgment on

16

Plaintiff’s claim under the Freedom of Information Act (FOIA), 5 U.S.C. § 522, that Defendant is

17

withholding agency records without legitimate justification under any of the limited exemptions in

18

the statute. (Dkt. Nos. 77 and 79.) The Court has thoroughly reviewed the parties’ submissions and

19

heard oral argument on the motions. The Court has also reviewed in camera the ex parte, classified

20

version of the declaration of Jennifer L. Hudson, submitted in support of Defendant’s summary

21

judgment motion. Based upon this review, the Court ORDERS that Defendant produce pertinent

22

documents for in camera review.

23

In FOIA cases, a court reviews the government agency’s decision to withhold records de

24

novo, and the government bears the burden of proving records have been properly withheld. 5

25

U.S.C. § 552(a)(4)(B). “Unlike the review of other agency action that must be upheld if supported

26
27
28

by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the
agency to sustain its action.’” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 755 (1989) quoting 5 U.S.C. § 552(a)(4)(B). Thus, when claiming one of FOIA’s

1

exemptions, the agency bears the burden of demonstrating to a reviewing court that withheld

2

information is “clearly exempt.” Birch v. USPS, 803 F.2d 1206, 1209 (D.C. Cir. 1986).

3

District courts have broad discretion to order in camera inspection of the actual documents

4

the agency seeks to withhold. See 5 U.S.C. § 552(a)(4)(B). Lion Raisins v. U.S. Dep't of Agric., 354

5

F.3d 1072, 1079 (9th Cir. 2004); Quinon v. F.B.I., 86 F.3d 1222, 1228 (D.C. Cir. 1996). Such in

6

camera inspection is particularly necessary when the government agency has not sustained its burden

7

based on its testimony or declarations alone. Lion Raisins, 354 F.3d at 1079. In camera review is

8

also appropriate where there is evidence to suggest that the agency has not acted in good faith, either

9

within the FOIA action itself or in the underlying activities that generated the records sought.

denied, 534 U.S. 1334 (2002); Allen v. Cent. Intelligence Agency, 636 F.2d 1287, 1298 (D.C. Cir.

12
Northern District of California

Quinon, 86 F.3d at 1228; Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 543 (6th Cir. 2001), cert.

11

United States District Court

10

1980) overruled on other grounds in Founding Church of Scientology of Washington, D.C., Inc. v.

13

Smith, 721 F.2d 828 (D.C. Cir. 1983). Further, in determining whether to undertake an in camera

14

review, a court must take into account concerns of judicial economy and the strength of the public’s

15

interest in disclosure of the documents sought. Rugiero, 257 F.3d at 543; Allen, 636 F.2d at 1298.

16

Here, the Court finds that an in camera inspection of the subject documents is warranted.

17

The evidence in the record shows that some documents, previously withheld in the course of this

18

litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably

19
20
21
22
23
24
25
26
27
28

segregable portions of those documents would have been required. Further, the withholding
followed an Order from this Court expressing concern that the agency had failed to explain
sufficiently why the withheld documents “would be so replete with descriptions of intelligence
activities, sources and methods that no portions thereof would contain” reasonably segregable and
producible, non-exempt information. (Order Re: Further Submission on Cross-Motion for Summary
Judgment, Dkt. No. 49, at 2-3.)
Further, the Court finds that the public’s interest in the documents withheld is significant.
The scope and legality of the government’s current surveillance practices of broad swaths of its
citizenry is a topic of intense public interest and concern. “The Freedom of Information Act was
aimed at ending secret law and insuring that this country have ‘an informed, intelligent electorate.””
Allen v. Cent. Intelligence Agency, 636 F.2d 1287, 1299 (D.C. Cir. 1980), citing H.R.Rep.No.1497,
2

1

89th Cong., 2d Sess. 12 (1966) U.S.Code Cong. & Admin.News 1966, p. 2419. In light of this

2

public interest, in camera review to assure that the agency is complying with its obligations to

3

disclose non-exempt material is certainly merited. Finally, as the parties have narrowed the range of

4

documents for review, the burden on judicial resources is not significant.

5

Based upon the foregoing, Defendant is ORDERED to deliver to the Court the following

6

documents for in camera inspection to assist the Court in making a responsible de novo

7

determination whether the documents are clearly exempt from disclosure under the FOIA:

(2) FISC order dated 10/31/2006 (19 pages);

10

(3) FISC orders dated 2/17/2006 (17 pages);

11

(4) FISC orders dated 2/24/2006 (8 pages);

12
Northern District of California

(1) FISC opinion dated 8/20/2008 (6 pages);

9

United States District Court

8

(5) FISC orders dated 12/16/2005 (16 pages).

13
14
15
16
17

(See Dkt. No. 77-2, Vaughn Index, at 1-3, Doc. No. 14A, 86J, 89D, 89K, 89S.)
IT IS SO ORDERED.
Date: June 13, 2014
___________________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

18
19
20
21
22
23
24
25
26
27
28

3