Electronic Frontier Foundation v. Department of Justice

Filing 88

SECOND ORDER RE: PRODUCTION OF DOCUMENTS FOR IN CAMERA REVIEW. Signed by Judge Yvonne Gonzalez Rogers on 7/24/14. (fs, COURT STAFF) (Filed on 7/24/2014)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ELECTRONIC FRONTIER FOUNDATION,
Plaintiff,

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Northern District of California

United States District Court

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

vs.
DEPARTMENT OF JUSTICE,
Defendant.

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

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Plaintiff’s claim under the Freedom of Information Act (FOIA), 5 U.S.C. § 522. (Dkt. Nos. 77 and

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79.) The cross-motions are under submission.

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The Court has reviewed in camera the ex parte, classified Declaration by the Chief of

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Operations, Office of Intelligence, National Security Division, Department of Justice (“the NSD

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Declaration”). Defendant argues that it is properly withholding, under FOIA Exemption 5, a

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memorandum of the Office of Legal Counsel dated January 4, 2010, which provided advice to the

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Department of Commerce regarding the interaction between disclosure provisions in the Patriot Act,

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and prohibitions on disclosure in the Census Act (“the Census Memorandum”). (Declaration of Paul

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Colborn, Dkt. No. 77-5, ¶13.) Defendants offered the NSD Declaration to explain why the withheld

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Census Memorandum was submitted to the FISC as part of an application by the Department of

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Justice, and why it should not be considered an adoption of the Census Memorandum as policy.
(Defendant’s Consolidated Opposition/Reply, Dkt. No. 80, at 18.)
Based upon the Court’s review of the NSD Declaration, Defendant is ORDERED to produce
additional pertinent documents for in camera review: (1) the Census Memorandum; and (2) the

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complete application of the Department of Justice in connection with which the Census

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Memorandum was submitted to the FISC.

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A court has broad discretion to order in camera inspection of the actual documents the

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

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

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

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

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Here, the NSD Declaration is not sufficient to explain how the Census Memorandum was

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used as part of the FISC application. The Court needs to see the unredacted Census Memorandum,

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and the context in which it was offered by Defendant to the FISC, in order to determine whether the

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Census Memorandum is properly withheld, in whole or in part.

Northern District of California

United States District Court

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Defendant is ORDERED to deliver to the Court for in camera inspection forthwith unredacted

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copies of: (1) the Census Memorandum; and (2) the complete application of the Department of

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Justice in connection with which the Census Memorandum was submitted to the FISC to assist the

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Court in making a responsible de novo determination whether the withheld documents are clearly

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exempt from disclosure under FOIA.

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IT IS SO ORDERED.
Date: July 24, 2014
___________________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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