Source: http://www.fas.org/sgp/jud/gerstein112906.pdf
Court Orders Expedited Handling of FOIA Request on Leaks
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 JOSHUA A. GERSTEIN, No. C-06-4643 MMC v. CENTRAL INTELLIGENCE AGENCY, et al., 19 Before the Court is plaintiff Joshua A. Gerstein's ("Gerstein") motion for summary 20 judgment on his claims that defendants Central Intelligence Agency ("CIA") and National 21 Security Agency ("NSA") violated the Freedom of Information Act ("FOIA") by denying 22 expedited processing of Gerstein's FOIA requests. Defendants have filed opposition to the 23 motion; Gerstein has filed a reply. Having considered the papers filed in support of and in 24 opposition to the motion, the Court finds the matter appropriate for decision without oral 25 argument, see Civil L.R. 7-1(b), hereby VACATES the December 1, 2006 hearing, and 26 rules as follows. 27 BACKGROUND 28 Gerstein alleges he is a professional journalist employed full-time as a reporter covering legal and political issues for the New York Sun, a daily newspaper published in
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 2 of 14 New York City. (See Compl. ¶ 2.) 1 Gerstein alleges that "[f]rom mid-2005 to the present, President Bush, executive 2 branch officials, members of Congress, and the press have participated in an escalating 3 public debate about unauthorized disclosures, often called `leaks,' of classified information." 4 (See Compl. ¶ 13.) According Gerstein, such debate "has been spurred and fueled by a 5 series of highly-publicized news reports, including stories about alleged secret CIA prisons 6 overseas, about the warrantless surveillance by the NSA of certain telephone calls placed 7 or received by Americans, about an alleged decision by President Bush and Vice President 8 Cheney to declassify an intelligence estimate on Iraq without notifying personnel normally 9 notified in such declassification, and about the alleged tracking by government agencies of 10 billions of long-distance telephone calls made within the United States." (See id.) 11 On March 16 and 17, 2006, Gerstein sent separate, but similar, FOIA requests to 12 the CIA, NSA, Department of Defense ("DOD"), Department of Justice ("DOJ"), Department 13 of State ("DOS"), Federal Bureau of Investigation ("FBI"), and the National Reconnaissance 14 Office ("NRO"), pursuant to which Gerstein sought certain records relating to unauthorized 15 disclosures of classified information, and asked that the processing of each such request 16 be expedited, on the ground that a compelling need exists for disclosure of the records 17 sought. (See Gerstein Decl. ¶¶ 1, 5, 7-10, 13-14, and 16-18 and Exs. A, E, G-J, M-N, and 18 P-R.) As an example, Gerstein's request to the CIA seeks the following records: 19 1. All so-called criminal referrals submitted by CIA to the Department of 20 Justice ("DOJ") since January 1, 2001 regarding unauthorized disclosure of classified information to the press or public. 21 2. All responses from DOJ to CIA indicating the outcome of the 22 investigations, inquiries, or legal analyses related to the incidents referenced in No. 1 above. 23 3. All records reflecting the outcome of disciplinary proceedings instituted in 24 connection with the incidents referenced in No. 1 above. 25 4. All records reflecting the outcome of damage assessments conducted in connection with the incidents referenced in No. 1 above. 26 5. All logs, lists, tallies, tabulations, summary reports, compilations, and the 27 like pertaining to the referrals described in No. 1 above, whether or not composed solely of those referrals. 28 2
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 3 of 14 1 6. All records pertaining to published reports in or about August 1998 that the United States was aware of or tracking a satellite telephone used by Osama 2 Bin Laden, the source or sources of that alleged leak, all referrals by DOJ in connection with that alleged leak, all replies from DOJ thereto, and any 3 damage assessment conducted in connection with that alleged leak. 4 (See id. Ex. A at 1-2.) 5 The DOD, DOJ, FBI, and DOS granted Gerstein's request for expedited processing. 6 (See id. Exs. F, L, O.) The CIA and NSA denied Gerstein's request for expedited 7 processing.1 (See id. Exs. B, and S.) The CIA rejected Gerstein's administrative appeal of 8 said denial on the ground that no appeal of a denial of expedited processing was permitted. 9 (See id. Ex. D.) The NSA considered Gerstein's administrative appeal and affirmed its 10 initial determination that expedited processing was not warranted. (See id. Ex. U.) As of 11 the date of the complaint, Gerstein alleges, he has received no records from any of the 12 defendants in response to his FOIA requests. (See id. ¶¶ 15, 16, 20, 21, 22, 23.) 13 Gerstein filed the instant action on July 31, 2006. Gerstein alleges, inter alia, that 14 (1) the CIA, DOD, DOJ, DOS, FBI, and NSA have violated FOIA by failing to disclose the 15 requested records, or to justify their withholding, within 20 business days of the receipt of 16 the requests; (2) the NRO has violated FOIA by failing to act on plaintiff's administrative 17 appeal within 20 business days of receipt; and (3) the CIA and NSA have violated FOIA by 18 failing to grant Gerstein's request for expedited processing. (See id. ¶¶ 27-29.) 19 LEGAL STANDARD 20 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment as 21 to "all or any part" of a claim "shall be rendered forthwith if the pleadings, depositions, 22 answers to interrogatories, and admissions on file, together with the affidavits, if any, show 23 that there is no genuine issue as to any material fact and that the moving party is entitled to 24 25 1 According to Gerstein, the NRO rejected his request for expedited processing, but 26 shortly thereafter advised him that it had located 31 pages of records responsive to his request and was withholding all records in their entirety pursuant to FOIA exemptions. 27 (See Compl. ¶ 22.) Gerstein alleges he has filed an administrative appeal of the NRO's withholding of responsive records, but, as of the date of the complaint, has received no 28 response to the appeal. (See id.) 3
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 4 of 14 judgment as a matter of law." See Fed. R. Civ. P. 56(b), (c). Material facts are those that 1 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 248 (1986). A dispute as to a material fact is "genuine" if the record contains admissible 3 evidence on which a reasonable jury could return a verdict for the nonmoving party. See 4 id. The Court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's 5 evidence must be believed and "all justifiable inferences must be drawn in [the 6 nonmovant's] favor." See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 7 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255). 8 The moving party bears the initial responsibility of informing the district court of the 9 basis for its motion and identifying those portions of the pleadings, depositions, 10 interrogatory answers, admissions and affidavits, if any, that it contends demonstrate the 11 absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 12 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving 13 party's burden is discharged when it shows the court there is an absence of evidence to 14 support the nonmoving party's case. See id. at 325. 15 Where the moving party "bears the burden of proof at trial, he must come forward 16 with evidence which would entitle him to a directed verdict if the evidence went 17 uncontroverted at trial." See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) 18 (citations omitted); see also Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) 19 (holding when plaintiff moves for summary judgment on issue upon which he bears burden 20 of proof, "he must establish beyond peradventure all of the essential elements of the claim . 21 . . to warrant judgment in his favor.") (emphasis in original). 22 A party opposing a properly supported motion for summary judgment "may not rest 23 upon the mere allegations or denials of [that] party's pleading, but . . . must set forth 24 specific facts showing that there is a genuine issue for trial." See Fed. R. Civ. P. 56(e); see 25 also Liberty Lobby, 477 U.S. at 250. The opposing party need not show the issue will be 26 resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is 27 necessary is submission of sufficient evidence to create a material factual dispute, thereby 28 4
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 5 of 14 requiring a jury or judge to resolve the parties' differing versions at trial. See id. 1 DISCUSSION 2 As noted, Gerstein moves for summary judgment on his claims that the CIA and 3 NSA violated FOIA by failing to grant expedited processing of Gerstein's FOIA requests. 4 A. Expedited Processing Legal Standard 5 Except in "unusual" or "exceptional" circumstances, an agency receiving a FOIA 6 request must "determine within 20 days (excepting Saturdays, Sundays, and legal public 7 holidays) after the receipt of any such request whether to comply with such request[.]" See 8 5 U.S.C. § 552(a)(6)(A), (B), (C). FOIA additionally requires all agencies to "promulgate 9 regulations . . . providing for expedited processing of requests for records . . . in cases in 10 which the person requesting the records demonstrates a compelling need . . . and . . . in 11 other cases determined by the agency." See 5 U.S.C. § 552(a)(6)(E). 12 Under FOIA, "the term `compelling need' means (I) that a failure to obtain records 13 on an expedited basis . . . could reasonably be expected to pose an imminent threat to the 14 life or physical safety of an individual; or (II) with respect to a request made by a person 15 primarily engaged in disseminating information, urgency to inform the public concerning 16 actual or alleged Federal Government activity." See 5 U.S.C. § 552(a)(6)(E)(v). "A 17 demonstration of a compelling need by a person making a request for expedited processing 18 shall be made by a statement certified by such person to be true and correct to the best of 19 such person's knowledge and belief." See 5 U.S.C. § 552(a)(6)(E)(vi).2 20 The CIA's regulations on expedited processing set forth no substantive standard 21 beyond that required by FOIA. See 32 C.F.R. § 1900.34(c) ("Requests for expedited 22 processing will be approved only when a compelling need is established to the satisfaction 23 of the Agency."). 24 The NSA's regulations on expedited processing provide that expedited processing 25 will be granted upon a showing of compelling need, "imminent loss of substantial due 26 27 2 Gerstein's FOIA requests to the CIA and NSA are certified. (See Gerstein Decl. 28 Ex. A at 6; Ex. R at 6.) 5
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 6 of 14 process rights," and "humanitarian need." See 32 C.F.R. § 299.5(f). "Compelling need" 1 exists, inter alia, when "[t]he information is urgently needed by an individual primarily 2 engaged in disseminating information in order to inform the public about actual or alleged 3 Federal government activity." See 32 C.F.R. § 299.5(f)(2). "Urgently needed means that 4 the information has a particular value that will be lost if not disseminated quickly." See id. 5 Additionally, the NSA is subject to the DOD's FOIA regulations. See 32 C.F.R. § 285.2(b). 6 The DOD's regulations on expedited processing are consistent with the NSA's regulations 7 on expedited processing, but additionally provide that "[r]epresentatives of the news media 8 . . . would normally qualify as individuals primarily engaged in disseminating information," 9 and that ordinarily the term "urgently needed" "means a breaking news story of general 10 public interest." See 32 C.F.R. § 286.4(d)(3)(ii). "However, information of historical interest 11 only, or information sought for litigation or commercial activities would not qualify, nor would 12 a news media publication or broadcast deadline unrelated to the news breaking nature of 13 the information." See 32 C.F.R. § 286.4(d)(3)(ii)(A). 14 "Agency action to deny or affirm denial of a request for expedited processing . . . 15 shall be subject to judicial review . . . based on the record before the agency at the time of 16 the determination." See 5 U.S.C. § 552(a)(6)(E)(iii). "[D]istrict courts must review such 17 denials de novo, rather than defer to agency determination." Al-Fayed v. Central 18 Intelligence Agency, 254 F.3d 300, 301 (D.C. Cir. 2001). 19 B. Discussion 20 Gerstein argues he is entitled to expedited processing of his FOIA requests on the 21 ground there is a compelling need for the information sought because he is "a person 22 primarily engaged in disseminating information" and there is "urgency to inform the public 23 concerning actual or alleged Federal Government activity." See 5 U.S.C. § 552(a)(6)(E)(v). 24 Defendants do not take issue with Gerstein's assertion that, as a reporter for the New York 25 Sun, he qualifies as a "person primarily engaged in disseminating information." Rather, 26 defendants argue that Gerstein has not shown that his requests involve a matter of 27 urgency. 28 6
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 7 of 14 In connection with his requests for expedited processing, Gerstein pointed to, and 1 attached copies of, then-recent statements by President Bush, Vice President Cheney, and 2 Director of Central Intelligence Porter Goss ("Goss"), wherein each of said individuals 3 complained about leaks of classified information. (See Gerstein Decl. ¶ 22, Ex. A at 2-4, 4 Ex. R at 2-4, Ex. V.) In particular, Gerstein noted, President Bush, in a December 19, 2005 5 press conference, complained about disclosure of a program for warrantless surveillance 6 as well as a disclosure relating to Osama Bin Laden's telephone. (See id. Ex. A at 2; Ex. R 7 at 2; Ex. V at 1.) Further, as noted by Gerstein, Vice President Cheney, in a February 15, 8 2006 interview with Fox News, stated that recent leaks of classified data had harmed the 9 United States' relationships with other governments, (see id. Ex. A at 3; Ex. R at 3; Ex. V at 10 13), and Goss, in various statements to the press in January and February 2006, 11 expressed concerns about the damage caused by leaks and the need to contain them, 12 stating he had referred dozens of leak infractions for investigation by a special CIA unit. 13 (See id. Ex. A at 3-4; Ex. R at 3-4; Ex. V at 14-19.) Moreover, as Gerstein pointed out, 14 Goss, at a hearing before the Senate Intelligence Committee in February 2006, described 15 the impact of leaks as "very severe" and stated that the CIA developed "a strong internal 16 program" to combat the leaks. (See id. Ex. A at 4; Ex. R at 4; Ex. V at 20-21.) 17 Gerstein further pointed out that, in reports published in November 2005 and 18 February 2006, which reports Gerstein attached to his requests, members of Congress had 19 complained about leaks of classified information and that at least one Congressman stated, 20 in February 2006, that he was considering introducing legislation to address the issue. 21 (See id. Ex. A at 4; Ex. R at 4; Ex. V at 22-29.) Finally, Gerstein represented that a search 22 of the Nexis database conducted on March 11, 2006 identified 977 news reports in the 23 previous 90 days that included the terms "classified" and "leaks." (See id. Ex. A at 4; Ex. R 24 at 4.) 25 Gerstein argued that such public statements and news reports "establish that 26 widespread and exceptional media interest exists in the subject of [his] request," that "the 27 recent comments of President Bush and other senior officials establish beyond any dispute 28 7
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 8 of 14 that the issues involved are of acute and significant national interest," and that "[t]he 1 potential for legislative action further underscores the urgency of [his] request." (See id. 2 Ex. A at 5; Ex. R at 5.) 3 In Gerstein's administrative appeals to the CIA and NSA, he further pointed out that 4 Goss had published an op-ed piece in the New York Times on February 10, 2006, in which 5 Goss stated that America was "at risk of losing a key battle: the battle to protect our 6 classified information," and that the CIA and the DOJ were working "aggressively" to 7 investigate unauthorized disclosures of confidential information. (See id. Ex. C at 2; Ex. T 8 at 2; and Ex. W at 1-2.) Additionally, Gerstein noted that on February 17, 2006, Senator 9 John Rockefeller sent a letter to John Negroponte, Director of National Intelligence, 10 expressing concerns about unauthorized disclosures of classified material, as well as 11 asserted disclosures of classified information for political purposes by persons in the Bush 12 administration. (See id. Ex. C at 2; Ex. T at 2; and Ex. W at 3-6.) Gerstein also referenced, 13 but did not attach copies of, April and May 2006 news articles about "the reported firing of a 14 veteran CIA officer for alleged leaks to the press" and the reported tracing of telephone 15 calls by journalists as part of an effort to locate leakers of classified information. (See id. 16 Ex. C at 2-3; Ex. T at 2-3.) Finally, Gerstein pointed out that President Bush, in a May 11, 17 2006 statement to the press, remarked, with respect to an alleged NSA program to collect 18 information on domestic telephone calls, that "every time sensitive intelligence is leaked, it 19 hurts [the government's] ability to defeat th[e] enemy." (See id. Ex. C at 3; Ex. T at 3.) 20 Gerstein expressed his hope that "[w]ith Mr. Bush complaining regularly about illegal leaks 21 and Mr. Goss penning op-ed pieces on his efforts to combat the problem," the CIA and 22 NSA "surely . . . will not persist in [the] argument, in essence, that [Bush and Goss] are 23 ruminating on matters of no significance." (See id. Ex. C at 3; Ex. T at 3.) 24 As discussed above, Gerstein, to obtain expedited processing, must demonstrate a 25 "compelling need" for the information sought, which requires a showing of "urgency to 26 inform the public concerning actual or alleged Federal Government activity." See 5 U.S.C. 27 § 552(a)(6)(E)(v). Although FOIA does not define "urgency," the D.C. Circuit, the only 28 8
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 9 of 14 appellate court to have addressed the issue, has observed that the relevant legislative 1 history provides the following guidance in interpreting the term: "`The standard of `urgency 2 to inform' requires that the information should pertain to a matter of a current exigency to 3 the American public and that a reasonable person might conclude that the consequences 4 of delaying a response to a FOIA request would compromise a significant recognized 5 interest.'" See Al-Fayed, 254 F.3d at 310 (quoting H.R. Rep. No. 104-795 at 26 (1996)). 6 The D.C. Circuit thus concluded: "[I]n determining whether requestors have demonstrated 7 `urgency to inform,' and hence `compelling need,' courts must consider at least three 8 factors: (1) whether the request concerns a matter of current exigency to the American 9 public; (2) whether the consequences of delaying a response would compromise a 10 significant recognized interest; and (3) whether the request concerns federal government 11 activity." See id. 12 In the instant case, with respect to the first factor, there is no dispute that the subject 13 of Gerstein's requests, the unauthorized leaking of classified information, was a subject of 14 great public interest at the time he submitted his FOIA requests. Rather, defendants argue, 15 relying on Al-Fayed, that "because the issue has been the subject of `ongoing' and 16 `sustained' interest . . . it cannot also be `urgent' and `exigent.'" (See Opp. at 7:24-26.) In 17 Al-Fayed, the D.C. Circuit held that a request for expedited processing of a FOIA request 18 for documents relating to the death of Princess Diana was properly denied, on grounds of 19 lack of exigency, because "[a]ll of the events and alleged events occurred two to three 20 years before [the] plaintiffs made their requests for expedited processing," and although the 21 topic might "continue to be newsworthy, none of the events at issue [was] the subject of a 22 currently unfolding story." See id. at 310. Here, by contrast, Gerstein seeks documents 23 concerning the government's ongoing efforts to address leaks of classified information, an 24 issue that is not only newsworthy, but was the subject of an ongoing national debate at the 25 time he made his FOIA requests. The Court finds Gerstein has demonstrated that the 26 subject of his FOIA requests concerned a matter of then-current exigency to the American 27 public. See, e.g., American Civil Liberties Union of Northern California v. U.S. Department 28 9
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 10 of 14 of Defense, 2006 WL 1469418 at *7 (N.D. Cal. 2006) (holding "extensive media interest 1 usually is a fact supporting not negating urgency in the processing of FOIA request"; 2 rejecting argument that publication of "a great deal of information" relevant to FOIA 3 requests eliminated urgency of such requests). 4 With respect to the second factor, defendants argue that Gerstein has failed to 5 establish that "the consequences of delaying a response would compromise a significant 6 recognized interest." See Al-Fayed, 254 F.3d at 310 (internal quotation and citation 7 omitted). Although, as defendants point out, Gerstein's requests for expedited processing 8 contain no express contention that delay in processing his requests would compromise "a 9 significant recognized interest," Gerstein nonetheless adequately described such an 10 interest. In particular, Gerstein expressly noted that "members of Congress have . . . 11 decried leaks of classified information and are considering legislation to address the issue" 12 and that leaks of classified information had been discussed in hearings before the Senate 13 Intelligence Committee, (see Gerstein Decl. Ex. A at 3-4; Ex. R at 3-4); he argued that 14 "[t]he potential for legislative action further underscores the urgency of this request," (see 15 Gerstein Decl. Ex. A at 5; Ex. R at 5). The Court agrees. As Gerstein points out in the 16 instant motion, there is a significant recognized interest in enhancing public debate on 17 potential legislative action. See, e.g., Leadership Conference on Civil Rights v. Gonzales, 18 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (granting expedited processing because, inter alia, 19 "[p]laintiff's FOIA requests could have vital impact on development of the substantive 20 record in favor of reauthorizing or making permanent the special provisions of the Voting 21 Rights Act"); American Civil Liberties Union v. United States Department of Justice, 321 F. 22 Supp. 2d 24 (D.D.C. 2004) (granting expedited processing because, inter alia, "a principle 23 aim of plaintiff's FOIA request is to provide information for the ongoing national debate 24 about whether Congress should renew Section 215 and other Patriot Act surveillance 25 provisions before they expire"). A delay in processing Gerstein's FOIA requests, as he 26 contends, "could preclude any meaningful contribution to the ongoing public debate and 27 render any disclosure little more than a historical footnote." (See Motion at 8:13-16.) 28 10
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 11 of 14 Moreover, even in the absence of potential legislative action, Gerstein argues, 1 "Congress clearly contemplated that requests pertaining to issues of intense public 2 attention should be expedited." (See Motion at 7:25-26.) Gerstein expressly argued in his 3 requests for expedited processing that "exceptional media interest exists in the subject of 4 [his] request[s]," and that the "comments of President Bush and other senior officials 5 establish beyond any dispute that the issues involved are of acute and significant national 6 interest." (See Gerstein Decl. Ex. A at 5; Ex. R. at 5.) While FOIA's legislative history 7 provides that the public's mere "right to know, although a significant and important value, 8 would not by itself be sufficient to satisfy" the "urgency to inform" requirement, see Al- 9 Fayed, 254 F.3d at 310 (internal quotation and citation omitted), at least one court has held 10 that the media has a "significant recognized interest," beyond the public's mere "right to 11 know," in "quickly disseminating breaking, general-interest news." See American Civil 12 Liberties Union of Northern California v. U.S. Department of Defense, 2006 WL 1469418 at 13 *8 (granting expedited processing of FOIA request for information about DOD's use of 14 "TALON" system for gathering information about political protests; relying on 53 recent 15 articles in press and inquiries about system by several members of Congress). As Gerstein 16 correctly observes, quoting Payne Enterprises v. United States, 837 F.2d 486 (D.C. Cir. 17 1988), "stale information is of little value." See id. at 494. Indeed, with respect to 18 expedited processing under FOIA, the regulations applicable to the NSA expressly define 19 the term "urgently needed" to encompass "a breaking news story of general public interest." 20 See 32 C.F.R. § 286.4(d)(3)(ii); see also American Civil Liberties Union of Northern 21 California v. U.S. Department of Defense, 2006 WL 1469418 at *8 (relying on 22 § 286.4(d)(3)(ii) in finding significant recognized interest in disseminating breaking news).3 23 Accordingly, the Court finds Gerstein demonstrated in his requests that the 24 25 3 The Court further notes that the DOD, DOJ, FBI, and DOS granted Gerstein's 26 request for expedited processing, based on the same showing as made to the CIA and NSA. (See id. Exs. F, L, O.) "`[C]ompelling need,' like other FOIA terms, sets a 27 government-wide rather than agency-specific standard"; "[t]he meaning of FOIA should be the same no matter which agency is asked to produce its records." See Al-Fayed, 254 28 F.3d at 306. 11
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 12 of 14 consequences of delaying a response thereto would compromise a significant recognized 1 interest. 2 Finally, there is no argument that the third factor has not been met; Gerstein's 3 requests unquestionably concern federal government activity. 4 In sum, Gerstein has demonstrated that (1) his FOIA requests concern a matter of 5 current exigency to the American public; (2) the consequences of delaying a response 6 would compromise a significant recognized interest; and (3) the requests concern federal 7 government activity. See Al-Fayed, 254 F.3d at 310. Consequently, the Court finds 8 Gerstein has demonstrated a compelling need for the information sought in his FOIA 9 requests and, accordingly, will GRANT Gerstein's motion for summary judgment on his 10 claims that the CIA and NSA violated FOIA by denying expedited processing of his FOIA 11 requests. 12 FOIA does not set forth a specific deadline by which expedited processing of a FOIA 13 request must be concluded. Rather, the statute provides: "An agency shall process as 14 soon as practicable any request for records to which the agency has granted expedited 15 processing[.]" See 5 U.S.C. § 552(a)(6)(E)(iii). Gerstein requests that the Court order the 16 CIA and NSA to produce "all non-exempt responsive records and portions of records within 17 30 days of the Court's ruling." (See Motion at 10:15-19.) Defendants do not respond to 18 this request and, in particular, do not contend it is not "practicable" for them to process 19 Gerstein's FOIA requests within 30 days. Indeed, agencies generally are required, within 20 20 days of receipt of even a non-expedited FOIA request, to process the request and 21 inform the requesting party of their determination to either comply or not comply, absent 22 "unusual" or "exceptional" circumstances. See 5 U.S.C. § 552(a)(6)(A), (B), (C). With 23 respect to production, FOIA provides that "[u]pon determination by an agency to comply 24 with a request for records, the records shall be made promptly available to such person 25 making such request," see 5 U.S.C. § 552(a)(6)(C)(i); the CIA and NSA have made no 26 showing that they are unable to comply with this mandate. Finally, Gerstein's FOIA 27 requests have been pending for more than eight months. Accordingly, the Court will 28 12
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 13 of 14 GRANT Gerstein's request that the CIA and NSA be required to process his requests and 1 produce all non-exempt responsive records within 30 days.4 2 Lastly, Gerstein seeks an order requiring the CIA and NSA to provide, within 60 days 3 of the date of this order, a Vaughn index of withheld records. Gerstein's request for a 4 Vaughn index appears in one sentence in his prayer for relief and is not otherwise 5 addressed by the parties. A Vaughn index, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 6 1973), "must identify each document withheld, and provide a particularized explanation of 7 how disclosure would violate an exemption" under FOIA. See Minier v. Central Intelligence 8 Agency, 88 F.3d 796, 803 (9th Cir. 1996). The Ninth Circuit has held, however, that 9 production of a Vaughn index is not necessary in all FOIA cases, see id. at 804, and in 10 particular, is unnecessary where an "affidavit submitted by an agency is sufficient to 11 establish that the requested documents should not be disclosed," or where "a FOIA 12 requester has sufficient information to present a full legal argument." See id. In the instant 13 case, as the CIA and NSA have not yet responded to Gerstein's FOIA requests, Gerstein 14 has not demonstrated the need for a Vaughn index. Accordingly, the Court will DENY 15 Gerstein's request for a Vaughn index, without prejudice to Gerstein's seeking such relief at 16 a later date if he finds the CIA's and NSA's forthcoming responses to his FOIA requests 17 lack sufficient detail with respect to any asserted justification for the withholding of 18 responsive records. 19 CONCLUSION 20 For the reasons set forth above, Gerstein's motion for summary judgment on his 21 claim that the CIA and NSA violated FOIA by denying his request for expedited processing 22 under FOIA, is hereby GRANTED, and the CIA and NSA are hereby ORDERED to produce 23 all non-exempt records and non-exempt portions of records that are responsive to 24 Gerstein's FOIA requests within 30 days of the date of this order. Gerstein's request for a 25 26 4 The Court, by this order, does not preclude the CIA and NSA from withholding 27 responsive documents pursuant to relevant FOIA exemptions. The question of whether any responsive documents may properly be withheld from production is not currently before 28 the Court. 13
Case 3:06-cv-04643-MMC Document 24 Filed 11/29/2006 Page 14 of 14 Vaughn index is hereby DENIED without prejudice. 1 This order terminates Docket No. 7. 2 IT IS SO ORDERED. 3 Dated: November 29, 2006 MAXINE M. CHESNEY 4 United States District Judge 5 14
Source: http://www.fas.org/sgp/jud/gerstein112906b.pdf
Court Orders Expedited Handling of FOIA Request on Leaks
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOSHUA A. GERSTEIN, No. C-06-4643 MMC Plaintiff, ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL RESPONSES TO v. FOIA REQUESTS; SETTING DEADLINE FOR PRODUCTION; DENYING CENTRAL INTELLIGENCE AGENCY, et al., WITHOUT PREJUDICE REQUEST FOR VAUGHN INDEX; VACATING HEARING Defendants. (Docket No. 8) 18 Before the Court is plaintiff Joshua A. Gerstein's ("Gerstein") motion to compel 19 defendants Department of Defense ("DOD"), Department of Justice ("DOJ") and Federal 20 Bureau of Investigation ("FBI") to respond to Gerstein's requests under the Freedom of 21 Information Act ("FOIA"). Defendants have filed joint opposition to the motion; Gerstein has 22 filed a reply. Having considered the papers filed in support of and in opposition to the 23 motion, the Court finds the matter appropriate for decision without oral argument, see Civil 24 L.R. 7-1(b), hereby VACATES the December 1, 2006 hearing, and rules as follows. 25 BACKGROUND 26 Gerstein alleges he is a professional journalist employed full-time as a reporter 27 covering legal and political issues for the New York Sun, a daily newspaper published in 28 New York City. (See Compl. ¶ 2.) Gerstein alleges that "[f]rom mid-2005 to the present, President Bush, executive
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 2 of 9 branch officials, members of Congress, and the press have participated in an escalating 1 public debate about unauthorized disclosures, often called `leaks,' of classified information." 2 (See Compl. ¶ 13.) According Gerstein, such debate "has been spurred and fueled by a 3 series of highly-publicized news reports, including stories about alleged secret CIA prisons 4 overseas, about the warrantless surveillance by the NSA of certain telephone calls placed 5 or received by Americans, about an alleged decision by President Bush and Vice President 6 Cheney to declassify an intelligence estimate on Iraq without notifying personnel normally 7 notified in such declassification, and about the alleged tracking by government agencies of 8 billions of long-distance telephone calls made within the United States." (See id.) 9 On March 16 and 17, 2006, Gerstein sent separate, but similar, FOIA requests to 10 the Central Intelligence Agency ("CIA"), National Security Agency ("NSA"), DOD, DOJ, 11 Department of State ("DOS"), FBI, and the National Reconnaissance Office ("NRO"), 12 pursuant to which Gerstein sought certain records relating to unauthorized disclosures of 13 classified information, and asked that the processing of each such request be expedited, on 14 the ground that a compelling need exists for disclosure of the records sought. (See 15 Gerstein Decl. ¶¶ 1, 5, 7-10, 13-14, and 16-18 and Exs. A, E, G-J, M-N, and P-R.) As an 16 example, Gerstein's request to the CIA seeks the following records: 17 1. All so-called criminal referrals submitted by CIA to the Department of 18 Justice ("DOJ") since January 1, 2001 regarding unauthorized disclosure of classified information to the press or public. 19 2. All responses from DOJ to CIA indicating the outcome of the 20 investigations, inquiries, or legal analyses related to the incidents referenced in No. 1 above. 21 3. All records reflecting the outcome of disciplinary proceedings instituted in 22 connection with the incidents referenced in No. 1 above. 23 4. All records reflecting the outcome of damage assessments conducted in connection with the incidents referenced in No. 1 above. 24 5. All logs, lists, tallies, tabulations, summary reports, compilations, and the 25 like pertaining to the referrals described in No. 1 above, whether or not composed solely of those referrals. 26 6. All records pertaining to published reports in or about August 1998 that the 27 United States was aware of or tracking a satellite telephone used by Osama Bin Laden, the source or sources of that alleged leak, all referrals by DOJ in 28 2
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 3 of 9 connection with that alleged leak, all replies from DOJ thereto, and any 1 damage assessment conducted in connection with that alleged leak. 2 (See id. Ex. A at 1-2.) 3 The DOD, DOJ, FBI, and DOS granted Gerstein's request for expedited processing. 4 (See id. Exs. F, L, O.) The CIA and NSA denied Gerstein's request for expedited 5 processing.1 (See id. Exs. B, and S.) As of the date of the complaint, Gerstein alleges, he 6 has received no records from any of the defendants in response to his FOIA requests. 7 (See id. ¶¶ 15, 16, 20, 21, 22, 23.)2 8 Gerstein filed the instant action on July 31, 2006. Gerstein alleges, inter alia, that 9 (1) the CIA, DOD, DOJ, DOS, FBI, and NSA have violated FOIA by failing to disclose the 10 requested records, or to justify their withholding, within 20 business days of the receipt of 11 the requests; (2) the NRO has violated FOIA by failing to act on plaintiff's administrative 12 appeal within 20 business days of receipt; and (3) the CIA and NSA have violated FOIA by 13 failing to grant Gerstein's request for expedited processing. (See id. ¶¶ 27-29.) 14 LEGAL STANDARD 15 Except in "unusual circumstances," an agency receiving a FOIA request must 16 "determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after 17 the receipt of any such request whether to comply with such request[.]" See 5 U.S.C. 18 § 552(a)(6)(A), (B). "Upon any determination by an agency to comply with a request for 19 20 1 According to Gerstein, the NRO rejected his request for expedited processing, but 21 shortly thereafter advised him that it had located 31 pages of records responsive to his request and was withholding all records in their entirety pursuant to FOIA exemptions. 22 (See Compl. ¶ 22.) Gerstein alleges he has filed an administrative appeal of the NRO's withholding of responsive records, but, as of the date of the complaint, has received no 23 response to the appeal. (See id.) 24 2 In a letter dated September 25, 2006, the DOJ Office of Professional Responsibility ("OPR") responded to Gerstein's FOIA request. (See attachment to Second Gerstein 25 Decl.) In that response, OPR stated it had identified 328 responsive documents, 70 of which were duplicates; of the remaining 258 documents, OPR produced 59 documents in 26 full and an additional 75 documents in part. (See id.) OPR referred 102 documents for review by the other agencies or other DOJ "components" from which they originated, and 27 referred an additional nine documents because they "contain information that is of interest to other agencies or DOJ components." (See id.) OPR withheld the remaining information 28 pursuant to various FOIA exemptions. (See id.) 3
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 4 of 9 records, the records shall be made promptly available to such person making such 1 request." See 5 U.S.C. § 552(a)(6)(C)(i). 2 Where "unusual circumstances" exist,3 the 20-day time limit "may be extended by 3 written notice to the person making such request setting forth the unusual circumstances 4 for such extension and the date on which a determination is expected to be dispatched," 5 but "[n]o such notice shall specify a date that would result in an extension for more than ten 6 working days." See 5 U.S.C. § 552(a)(6)(B)(i). Where such written notice has been 7 provided, "the agency shall notify the person making the request if the request cannot be 8 processed within the time limit specified and shall provide the person an opportunity to limit 9 the scope of the request so that it may be processed within that time limit or an opportunity 10 to arrange with the agency an alternative time frame for processing the request or a 11 modified request." See 5 U.S.C. § 552(a)(6)(B)(ii). 12 "Any person making a request to any agency for records . . . shall be deemed to 13 have exhausted his administrative remedies with respect to such request if the agency fails 14 to comply with the applicable time limit provisions." See 5 U.S.C. § 552(a)(6)(C)(i). "If the 15 Government can show exceptional circumstances exist and that the agency is exercising 16 due diligence in responding to the request, the court may retain jurisdiction and allow the 17 agency additional time to complete its review of the records." See id. "[T]he term 18 `exceptional circumstances' does not include a delay that results from a predictable agency 19 workload of requests . . . , unless the agency demonstrates reasonable progress in 20 reducing its backlog of pending requests." See 5 U.S.C. § 552(a)(6)(C)(ii). "Refusal by a 21 person to reasonably modify the scope of a request or to arrange an alternative time frame 22 23 24 3 FOIA provides that "`unusual circumstances' means, but only to the extent reasonably necessary to the proper processing of the particular requests (I) the need to 25 search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;(II) the need to search for, collect, and 26 appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (III) the need for consultation, which shall be conducted 27 with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having 28 substantial subject-matter interest therein." See 5 U.S.C. § 552(a)(6)(B)(iii). 4
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 5 of 9 for processing a request (or a modified request) . . . after being given an opportunity to do 1 so by the agency to whom the person made the request shall be considered as a factor in 2 determining whether exceptional circumstances exist." See 5 U.S.C. § 552(a)(6)(C)(iii). 3 Although FOIA provides for expedited processing of certain requests, see 5 U.S.C. § 4 552(a)(6)(C)(iii), the statute does not set forth a specific deadline by which expedited 5 processing of a FOIA request must be concluded. Rather, the statute provides: "An agency 6 shall process as soon as practicable any request for records to which the agency has 7 granted expedited processing[.]" See 5 U.S.C. § 552(a)(6)(E)(iii). Nonetheless, "an agency 8 that violates the twenty-day deadline applicable to standard FOIA requests presumptively 9 also fails to process an expedited request `as soon as practicable.'" See Electronic Privacy 10 Information Center v. Department of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006). "The 11 presumption of agency delay raised by failing to respond to an expedited request within 12 twenty days" is, however, "rebuttable if the agency presents credible evidence that 13 disclosure within such time period is truly not practicable." See id. at 39; see also 5 U.S.C. 14 § 552(a)(6)(C)(i) (authorizing courts to grant agency additional time to complete review of 15 records responsive to FOIA request "[i]f the Government can show exceptional 16 circumstances exist and that the agency is exercising due diligence in responding to the 17 request"). "[V]ague assertions, unsupported by credible evidence, are insufficient to 18 demonstrate that further delay is . . . necessitated." See Electronic Privacy Information 19 Center v. Department of Justice, 416 F. Supp. 2d at 39. 20 "Agency action to deny or affirm denial of a request for expedited processing . . . , 21 and failure by an agency to respond in a timely manner to such a request [is] subject to 22 judicial review . . . based on the record before the agency at the time of the determination." 23 See 5 U.S.C. § 552(a)(6)(E)(iii). Additionally, "the district court . . . has jurisdiction to enjoin 24 the agency from withholding agency records and to order the production of any agency 25 records improperly withheld from the complainant." See 5 U.S.C. § 552(a)(4)(B). In such a 26 case the district court "determine[s] the matter de novo, . . . and the burden is on the 27 agency to sustain its action." See id. 28 5
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 6 of 9 DISCUSSION 1 Gerstein moves to compel the DOD, DOJ, and FBI to release "all non-exempt 2 responsive records and portions of records within 30 days of the Court's ruling." See 3 Motion at 5:4-6.) Gerstein notes that although the DOD, DOJ, and FBI granted expedited 4 processing of his FOIA requests, those requests have been pending for more than eight 5 months and he has received no substantive response to his requests. Gerstein argues that 6 because FOIA requires non-expedited requests to be processed within 20 days, 7 defendants are in violation of FOIA by taking more than eight months to respond to FOIA 8 requests that have been granted expedited processing. 9 As discussed above, defendants have the burden of demonstrating both the 10 existence of exceptional circumstances, and that they are exercising due diligence in 11 responding to Gerstein's FOIA requests, before the Court may grant defendants an 12 extension of FOIA's time limits. See 5 U.S.C. § 552(a)(6)(C)(i) ("If the Government can 13 show exceptional circumstances exist and that the agency is exercising due diligence in 14 responding to the request, the court may retain jurisdiction and allow the agency additional 15 time to complete its review of the records."). Here, defendants have submitted no evidence 16 as to the reasons for their delay in processing Gerstein's requests, and no evidence that 17 they are exercising due diligence. Accordingly, defendants have not demonstrated a need 18 for additional time to complete their review. See, e.g., Electronic Privacy Information 19 Center v. Department of Justice, 416 F. Supp. 2d at 39-40 (granting preliminary injunction 20 by which DOJ required to complete processing of expedited FOIA request within 20 days 21 because defendant submitted no evidence that timely processing was impracticable); see 22 also Fiduccia v. United States Department of Justice, 185 F.3d 1035 (9th Cir. 1999) 23 (rejecting defendant's request for eight-year extension of time to respond to non-expedited 24 FOIA request where defendant's "own affidavits show[ed] that the circumstances were 25 unexceptional"). 26 Defendants do not contend otherwise. Rather, defendants argue that Gerstein 27 cannot meet the requirements for a preliminary injunction. Assuming Gerstein's "Motion to 28 6
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 7 of 9 Compel" is, in effect, a motion for a preliminary injunction, he has satisfied the 1 requirements thereof. In determining whether to grant a motion for a preliminary injunction, 2 the Court weighs "four equitable factors: the movant's likelihood of success on the merits; 3 the possibility of irreparable injury to the moving party; the extent to which the balance of 4 hardships favors each party; and whether the public interest will be advanced by granting 5 the preliminary relief." See Overstreet v. United Brotherhood of Carpenters and Joiners of 6 America, Local Union No. 1506, 409 F.3d 1199, 1207 (9th Cir. 2005). To obtain a 7 preliminary injunction, "a moving party must show either a combination of probable success 8 on the merits and the possibility of irreparable harm or serious questions going to the 9 merits, the balance of hardships tipping sharply in its favor, and at least a fair chance of 10 success on the merits." See id. (internal quotation and citations omitted). As set forth 11 below, Gerstein has made the requisite showing. 12 First, Gerstein has demonstrated a likelihood of success on the merits of his claim 13 that defendants are violating FOIA by failing to timely respond to his FOIA requests, 14 because defendants have submitted no evidence as to the reasons for such delay. See 15 Electronic Privacy Information Center v. Department of Justice, 416 F. Supp. 2d at 39 n.8 16 (rejecting argument that plaintiff, on motion for preliminary injunction, bears burden of 17 demonstrating agency is not processing request as soon as practicable). Indeed, in the 18 absence of relevant evidence as to the reasons for their delay in processing Gerstein's 19 requests, defendants have no likelihood of success on the merits. See id. at 39-40 (finding 20 likelihood of success on merits of claim for untimely processing of expedited FOIA request 21 where defendants submitted no evidence of reasons for delay). 22 Next, Gerstein has demonstrated a likelihood of irreparable injury if an injunction is 23 not granted, because, as Gerstein argues, (see Motion at 4:14-18), "[t]he ongoing debate 24 about how to respond to classified leaks and how aggressively to investigate them cannot 25 be restarted or wound back." See Electronic Privacy Information Center v. Department of 26 Justice, 416 F. Supp. 2d at 41 (finding adequate showing of irreparable injury to support 27 preliminary injunction where plaintiff would be precluded, in absence of injunction, "from 28 7
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 8 of 9 obtaining in a timely fashion information vital to the current and ongoing debate surrounding 1 the legality of the Administration's warrantless surveillance program"). 2 Third, with respect to the balance of hardships, defendants fail to submit any 3 evidence that they would incur any hardship by being ordered to respond to Gerstein's 4 FOIA requests in accordance with the proposed timeline. Accordingly, the balance of 5 hardships tips entirely in Gerstein's favor. 6 Finally, the public interest is advanced by an injunction because, as Gerstein notes, 7 a core purpose of FOIA is to allow the public to be informed about "what their government 8 is up to," and "[o]fficial information that sheds light on an agency's performance of its 9 statutory duties falls squarely within that statutory purpose." See United States Department 10 of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989); 11 see also Electronic Privacy Information Center v. Department of Justice, 416 F. Supp. 2d at 12 42 (internal quotation and citation omitted) (finding public interest prong met because 13 expedited release of requested documents "furthers FOIA's core purpose" and because of 14 an "overriding public interest . . . in the general importance of an agency's faithful 15 adherence to its statutory mandate"). Moreover, by granting Gerstein's request for 16 expedited processing, defendants have effectively conceded that Gerstein has 17 demonstrated an "urgency to inform the public" about the government activity that is the 18 subject of his requests. See 5 U.S.C. § 552(a)(6)(E)(v)(II) (defining "compelling need" 19 justifying request for expedited processing of FOIA request to include "urgency to inform 20 the public concerning actual or alleged Federal Government activity"). 21 Accordingly, the Court will GRANT Gerstein's motion to compel the DOD, DOJ, and 22 FBI to process Gerstein's FOIA requests and to produce all non-exempt responsive records 23 and non-exempt portions of records within 30 days.4 24 Lastly, Gerstein seeks an order requiring the DOD, DOJ, and FBI, as well as the 25 26 4 The Court, by this order, does not preclude the DOD, DOJ, and/or FBI from 27 withholding responsive documents pursuant to relevant FOIA exemptions. The question of whether any responsive documents may properly be withheld from production is not 28 currently before the Court. 8
Case 3:06-cv-04643-MMC Document 23 Filed 11/29/2006 Page 9 of 9 NRO, to provide, within 60 days of the date of this order, a Vaughn index of withheld 1 records. A Vaughn index, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), "must 2 identify each document withheld, and provide a particularized explanation of how disclosure 3 would violate an exemption" under FOIA. See Minier v. Central Intelligence Agency, 88 4 F.3d 796, 803 (9th Cir. 1996). The Ninth Circuit has held, however, that production of a 5 Vaughn index is not necessary in all FOIA cases, see id. at 804, and in particular, is 6 unnecessary where an "affidavit submitted by an agency is sufficient to establish that the 7 requested documents should not be disclosed," or where "a FOIA requester has sufficient 8 information to present a full legal argument." See id. In the instant case, as the DOD, 9 DOJ, and FBI have not yet responded to Gerstein's FOIA requests, and Gerstein has not 10 identified any deficiency in the NRO's response, Gerstein has not demonstrated the 11 necessity of a Vaughn index. Accordingly, the Court will DENY Gerstein's request for a 12 Vaughn index, without prejudice to Gerstein's seeking such relief at a later date. 13 CONCLUSION 14 For the reasons set forth above, Gerstein's motion to compel the DOD, DOJ, and 15 FBI to respond to Gerstein's FOIA requests within 30 days is hereby GRANTED. The 16 DOD, DOJ, and FBI are hereby ORDERED to process Gerstein's FOIA requests and to 17 produce all non-exempt records and non-exempt portions of records that are responsive to 18 Gerstein's FOIA requests within 30 days of the date of this order. Gerstein's request for a 19 Vaughn index is hereby DENIED without prejudice. 20 This order terminates Docket No. 8. 21 IT IS SO ORDERED. 22 Dated: November 29, 2006 MAXINE M. CHESNEY 23 United States District Judge 24 25 26 27 28 9
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