Misc. 13-01 EFF Motion (FISC 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on April 1, 2013.
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UNITED STATl<:S FOREIGN INTELLIGENCE'. SURVEILLANCE COURT ' IN RE MOTION FOR CONSENT TO DISCLOSURE OF COURT RECORDS OR, IN THE ALTERNATIVE, A DETERMINATION OF TI-IE EFFECT OF THE COURT'S RULES ON STATUTORY ACCESS RIGHTS ) ) ) ) (_ - ,_, ~-- ., ~ ; ' Docket No. l\.lD~. ) 13-0 1 • MOTION OF THE ELECTRONIC FRONTIER FOUNDATION FOR CONSENT TO DISCLOSURE OF COURT RECORDS OR, IN THE ALTERNATIVE, A DETERMINATION OF THE EFFECT OF THE COURT'S RULES ON STATUTORY ACCESS RIGHTS DA YID L. SOBEL Electronic Frontier Foundation 1818 N Street, N.W., Suite 410 Washington, DC 20036 (202) 797-CJOOCJ sobcl@eff.org MARKRUMOLD Electronic Frontier Foundation 454 Shotwell Street San Francisco, CJ\ 94110 (415) 436-9333 mark(lr)cff. org ('ounsel fiJr Electronic Fi·ontier Foundation Introduction Pursuant to Ruic 6(d) of the Foreign Intelligence Surveillance Court's Rules of Procedure ("FISC Rules"), the Electronic Frontier Foundation ("EFF") respectfully moves this Court for entry of an order consenting to the disclosure of certain Court records, subject to appropriate security procedures or, in the alternative, a determination that the FISC Rules do not constitute a bar to disclosure of records otherwise subject to release under the Freedom of Information J\ct ("FOIJ\"), 5 U.S.C. § 552. While EFF recognizes that such a request to this Court is unusucl, EFF's need for the requested relief results from a position the U.S. Department ofJusticc ("DOJ") has advanced in pending FOIJ\ litigation in the United States District Court for the District of Columbia. The circumst'1nees giving rise to this motion are set forth below. Background In July 2012, EFF liled a FOIJ\ request with DOJ requesting, among other records, any "written opinion or order" of this Court in which the Court held government surveillance conducted under the FISA Amendments Act, Pub. L. 1 10-261, 122 Stat. 2436 (2008), "was unreasonable under the Fourth Amendment" or had ·'circumvented the spirit of the law." Complaint 1112 (Dkt. No. 1). 1 After DOJ foiled to release the requested records within the statutorily-mandated tirncframe, EFF lllcd suit in the United States District Court for the District of Columbia on August 30, 2012. By letter dated January J, 201 J, DO.I initially informed EFF that it had located records, including a FISC opinion, responsive to EFF's request. Mcmornndurn of Points In this motion, all citations to docket entries arc to EFF v. !Jep'r of.!usrice, No. 121441-J\B.J (D.D.C. filed J\ug. 30, 2012). 1 2 and Authorities in Support of the Dep't of' Justice's Motion for Summary Judgment ("DOJ Mcm.") (Dkt. No. 11-1) (attached hereto as Exhibit 1) at 8-9. The agency indicated that the records were being withheld in full under Exemptions l and 3 of the FOIA. Id. On April I, 2013, DOJ moved for summary judgment in the district court. The agency again acknowledged that it was withholding a FISC opinion responsive to EFF's request - an 86-pagc opinion issued on October 3, 2011. 2 Declaration of Mark Bradley ("Bradley Deel."),~ 5 (Dkt. No. 11-3) (attached hereto as Exhibit 2). DOJ claimed in its motion that, independent of any exemption to FOIA, the FISC Rules bar the agency from disclosing any part of the responsive opinion in response to a FOIA request. See DOJ Mcm. at 11-15. Specifically, DO.I asserted that FlSC opinions and orders arc subject to strict security procedures set forth in the FISC Rules of Procedure. See SO U.S.C. § l 803(c) (providing that "rccord[s] of proceedings under this chapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence"). Notwithstanding that, by statute, the Attorney General as part of his reporting obligations to Congress is authorized to provide copies of FI SC opinions to Congress, (sec 50 U.S.C. § 187l(c)(l)), the FISC Rules of Procedure require that the government "contemporaneously notify the Court in writing whenever it provides copies of Court records to Congress and must include in the notice a list of the documents provided." Fl SC R. P. 62(c)( 1). Otherwise, the FIS(' Hules of'/'roced11re do not u11thori:e the release of'co11rt opinions by rhe Deportmenl. Sec FISC R. I'. 62. Rather, opinions may be released puh/icly only i/ordered p11h!ished s1111 .1ponle by the 011/horin,~ judge or upon motion by o parry re1111esling p11h/icotion[.J Id. at 14 (citations omitted; emphasis added). !)OJ flatly asserted that ''(pjursuant to the FlSC Rules of Procedure, the Department is prohibited from disclosing Ithe requested 2 A second, redacted version of the Fl SC Opinion, which was produced for Congress, was also determined to be responsive to EFF's request. material] publicly," and that "the Dcpartrnent has no discretion over the release of FISC orders and accordingly is not 'irnpropcrly' withholding /them]." Id. at 15 (citations and footnote omitted). The agency's declarnnt stated unequivocally that ''FISC rules do not permit the Government to release FISC opinions to a FOIA requester or any other member of the public without a FISC order." Bradley Deel. 1[ 8, n.2. On April 24, 2013, EFF llicll a motion in the district court to stay proceedings in the pending FOIA rnatter on the ground that such a stay was warranted "to definitively resolve the interplay between the FISC's procedural rules, FOIA, and the release of the FISC opinions at issue in [the district court] case," Plainti!Ts Unopposed Motion to Stay Proceedings (Dkt. No. 12) at 1-2, and noted that "[t]he FISC is uniquely able to opine on the application of its own rules, and should clearly be afforded an opportunity to do so before this [the district court] proceeds," id. at 3. DO.I indicated that it did not oppose EFF's motion, and the district court granted the motion in a minute order issued later that ch1y. i\rgu1ncnt 1. The Court has jurisdiction to entertain this motion. On one previous occasion, this Court was called upon to consider its authority to render a determination concerning the potential disclosure of' its orders and opinions. In 2007, the American Civil Liberties Union ("ACLU") filed a motion with the Court seeking release of certain FISC records, including orders issued by the Court. Jn re Release o{Courl Records, 526 F. Supp. 2d 484 (Foreign Intel. Surv. Ct. 2007). The government opposed the ACLU's motion, asserting, in/er cilio, that ''the Court lacks jurisdiction over the motion." Id. at 485. The Court disagreed, noting that "it would be quite odd if the FISC did not have jurisdiction 4 in the first instance to adjudicate a claim of' right to the court's very own records and files." Id. at 487 (footnote omitted). The Court held that ··the FISC rules do not preclude the filing of [the] motion by the ACLU," and that "[fjurthcrmore, this Court's inherent power over its records supplies the authority to consider a claim of legal right to release of those records .... " Id 2. The FJSC Rules do not bar disclosure under FOIA. Contrary to DOJ's assertion in the district court, the FISC Rules, in and of themselves, in no way prohibit disclosure of the records EFF seeks through its FOIA request. As an initial matter, the circumstances present here are clearly distinguishable from those the Court confronted when it considered the ACLU's motion in 2007. The ACLU asserted that "under the First Amendment and the common law, the public has a qualified right of access to the records in question," and sought entry of an order releasing the material on those grounds. Jn re Release olC011rl Records, 526 F. Supp. al 485. The Court rejected that argument for reasons not pertinent here, but noted that, "[o[f course, nothing in this decision forecloses the ACLU from pursuing whatever remedies may be available lo it in a district court through a FOIA request addressed lo the Executive Branch." Id al 497. While the Court acknowlcdgccl the option of "making its o\vn release decisions about classilicd documents ... lby] conduct[ingj a review under the same standards as a district court would in FOIA litigation.'' it concluded ·'there would be no point in this Court's merely duplicating the judicial review that the J\CLU, and anyone else. can obtain by 5 submitting a FOIA request to the Department of Justice for these same records." Id. at 496 n.32 3 Here, EFF simply seeks lo pursue its statutory right of' access under FOIA in the 111anner this Court previously described. Rather than ask the Court to "rnak[c J its own release decisions about classified documents," EFF requested access to copies of the Court's opinions in the possession of the Executive Branch. In response, DOJ has represented to the district court that "[p]ursuant lo the FISC Rules of Procedure, the Department is prohibited from disclosing [the requested 111aterial] publicly,'' and that "the Department has no discretion over the release of FISC orders and accordingly is not 'i111propcrly' withholding [the111]." Def. Mc111. at 15 (citations and footnote 0111itted). DOJ specifically cites FISC Ruic 62(a), which provides: Publication of Opinions. The Judge who authored an order, opinion, or other decision 111ay s11a .1po11/e or on 111otion by a party request that it be published. Upon such request, the Presiding Judge, alter consulting with other Judges of the Court, 111ay direct that an order, opinion or other 3 In its opposition to the ACLU's motion, the government agreed tl1ut FOi;\ provided the appropriate vehicle through which to seek disclosure of this Court's records: Under FOii\, the i\CLU cannot ask this Court for its orders because FOi/\ applies only to Executive Brunch agency records. The ACLU can use FOi/\. however. to seek access to FISC orders and Government briers in the Lxceutivc 13ranch's possession. The FOi;\ process. which combines an initial review and decision by the J;xccutive llranch on the release and withholding of inl(irnrntion with Judicial Branch review in an adversary and public proceeding. is the proper means for the ;\CLU to seek records of this Court ·s proceedings fro111 the Executive Branch. Moreover, FOi A· s judicial re111cdics must be sought only in district court, not in this Court. Instead of following the FOi/\ process that Congress careltdly laid out. the ACLU has improperly attempted an end run around FOi;\ by Ii ling this motion. Opposition to the American Civil Liberties Union's Motion l(ir Release of Court Records, In re Moriunfi!r Releosc of'Co11rl Recrmf.1· (Foreign Intel. Surv. Ct. Misc. 0701 ), al 5 (citation omitted). 6 decision be published. Before publication. the Court rnay, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified inforrnation is appropriately protected pursuant to Executive Order 13526 (or its successor). EFF respectfully submits that while FISC Rule 62(a) provides one means of seeking disclosure of FISC records, it in no way purports to be the exclusive means of doing so. Indeed, this Court has explicitly recognized that "anyone" can obtain judicial review of a government decision to withhold copies of this Court's records "by submitting a FO!A request to the Department of Justice fi:ir these sarne records." In re Release o/Courl Records, 526 F. Supp. at 496 n.32. When the ACLU sought an order from this Court seeking the release ofFISC records, the governrnent complained that the request amounted to an attempted "end run around FOIA." Now, in the face ofEFF'.s effort to seek disclosure ofFISC material in the government's possession under FOIA (following this Court's explicit guidance), DO.I asserts that this Court's rules somehow bar release and, in effect, divest the district court of its jurisdiction to consider the matter. EFF submits that the government cannot have it both ways. The argument DO.I seeks to advance in the district court would, if accepted, impose a "Catch-22" preventing onyjudicial review of access rights to this Court's materials. To avoid that result, EFF respectfully requests entry of an order in which this Court notes its consent (or lack of opposition) to the disclosure of the material EFT seeks should such material be found to be non-exempt under the provisions of FOIA, subject to any security procedures the Court deems appropriate. In the alternative, EFJ.' requests a determination that the FISC rules do not prohibit disclosure of the requested material in a 7 manner that would supersede ajudicial determination that such material is subject to disclosure under FOIA. Con cl us ion For the foregoing reasons, EFF's motion should be granted. Respectfully submitted, 1Xw!d.SM I?3~ I DAVID L. SOBEL Electronic Frontier Foundation 1818 N Street, N.W., Suite 410 Washington, DC 20036 (202) 797-9009 sobel@eff.org MA&l!Y Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 941 10 (415) 436-9333 mark(oJcff.org CounseljiJr F/ec/ronic i'i·onlier Foumlution 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing motion have been served on the following counsel this 21st day of May, 2013, in the manner indicated:, By e-mail: JACQUELINE COLEMAN SNEAD Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, D.C. 20530 E-mail: Jacqueline.Snead@usdoj.gov By overnight delivery: CHRISTINE GUNNING United States Department of Justice Litigation Security Group 2 Constitution Square 145 N Street NE Suite 2W-l 15 Washington, D.C. 20530 (202) 514-9016 9
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