No Easy Answers


Tuesday, December 05, 2006

Court Rulings on FOIA requests re: Press Leaks (Gerstein v. CIA et al)

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



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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



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     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



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     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



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     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



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     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



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     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



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      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

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             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.

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      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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