[promoted by BooMan]

Earlier today, the U.S. District Court for the District of Columbia ordered the DOJ to produce within 20 days all documents pursuant to a FOIA request for materials relating to the domestic spying/surveillance program initiated by the Bush Administration.  The opinion, by Judge Henry Kennedy (a Clinton nominee, FWIW), can be found here (19-page PDF).

The order also requires the DOJ to provide a complete “document index and declaration . . . stating its justification for the withholding of any documents responsive to EPIC’s requests within 30 days of the date of this order.” (Opinion at 19)

Further details below the fold.
On December 16, 2005, the same day that the New York Times reported on the surveillance scandal, the Electronic Privacy Information Center (EPIC) submitted four requests under the Freedom of Information Act to agencies within the Department of Justice.  The FOIA requests sought:

(1) an audit of NSA domestic surveillance activities;
(2) guidance or a “checklist” to help decide whether probable cause exists to monitor an individual’s communications;
(3) communications concerning the use of information obtained through NSA domestic surveillance as the basis for DOJ surveillance applications to the FISC; and
(4) legal memoranda, opinions or statements concerning increased domestic surveillance, including one authored by John C. Yoo shortly after September 11, 2001 discussing the potential for warrantless use of enhanced electronic surveillance techniques.

As noted in today’s opinion, EPIC asked for expedited processing of their request, and surprisingly, the DOJ agencies all agreed.  However, none have been willing to commit to a timetable as to when all the documents will be produced (the DOJ has said that it plans to begin disclosure on March 3, and continue on a rolling basis thereafter).

EPIC moved for a preliminary injunction and an order “requiring DOJ to complete the processing of its FOIA requests within twenty days and to provide a Vaughn index within thirty days.  A Vaughn index describes what information the agency withheld from the FOIA requester as well as the statutory exemption claimed for each withholding. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).” (Opinion at 5)

The DOJ argued that a preliminary injunction would be improper and that an order now would be tantamount to granting plaintiff the ultimate relief sought in the case, which is to say, accelerated processing of the FOIA requests.  The judge rejected this argument, noting that governing precedent requires courts to prevent abuses such as unreasonable delays in disclosing non-exempt documents.

Thus, the issue came down to one of interpreting the phrase “as soon as practicable” (from a 1996 FOIA Amendment that created the expedited processing category).  The DOJ claimed that the phrase would mean that no concrete deadline could be imposed.  Judge Kennedy held, however:

Under DOJ’s view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests, with the courts playing no role whatsoever in the process. When pressed at the preliminary injunction hearing as to what delay would be excessive enough such that a court could properly invoke its authority to compel production, counsel for DOJ was unable or unwilling to give an answer. Rather, DOJ’s counsel suggested that the court and the requestor simply must take at face value an agency’s determination that more time is necessary, regardless of the time that has elapsed since the request was filed. DOJ’s position is easily rejected.

As EPIC suggests, DOJ’s reading of the statute would give the agency unchecked power to drag its feet and “pay lip service” to a requester’s “statutory and regulatory entitlement to expedition.” (Opinion at 9-10; citations omitted)

Nearing his conclusion, Judge Kennedy seems to mock the government’s view, taking issue with the Bush Administration’s “trust us” attitude:

DOJ insists that EPIC will suffer no harm if the court were to deny EPIC’s motion for a preliminary injunction because DOJ has already afforded EPIC all the relief to which it is entitled. Because it has already expedited EPIC’s FOIA requests by administratively granting them expedited status and prioritizing them over other pending requests, DOJ argues that EPIC is entitled to “nothing more.” This argument stretches the limits of plausibility. EPIC’s right to expedition is certainly not satisfied by DOJ’s decision to give priority to EPIC’s requests. What matters to EPIC is not how the requests are labeled by the agency, but rather when the documents are actually released. As EPIC contends, “merely paying lip service” to EPIC’s statutory right does not negate “the harm that results from the agency’s failure to actually expedite its processing.” Unless the requests are processed without delay, EPIC’s right to expedition will be lost.

Moreover, DOJ’s arguments challenging the irreparable nature of the harm sustained by EPIC as a result of DOJ’s delay is severely undermined by its determination that EPIC’s FOIA requests merit expedition. Such a determination necessarily required DOJ to find that there was an “urgency to inform the public” about the warrantless surveillance program. Given this concession, the court finds it hard to accept DOJ’s current argument that disclosure is not urgent and that further delay will not harm EPIC.  (Opinion at 15-16; citations omitted)

Will the documents all be turned over no later than March 8 (20 days), and an index produced 10 days later?  Stay tuned, but I, for one, won’t be holding my breath.

(Cross-posted at the orange place)

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