Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 1 of 31

1 AARON MACKEY (SBN 286647) [email protected] 2 NATHAN D. CARDOZO (SBN 259097) [email protected] 3 ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street 4 San Francisco, CA 94109 Telephone: (415) 436-9333 5 Facsimile: (415) 436-9993

6 Attorneys for Plaintiff 7 ELECTRONIC FRONTIER FOUNDATION

8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 ELECTRONIC FRONTIER FOUNDATION, ) Case No. 16-cv-02041-HSG 12 ) Plaintiff, ) NOTICE OF MOTION AND CROSS 13 ) MOTION FOR PARTIAL SUMMARY v. ) JUDGMENT AND OPPOSITION TO 14 ) DEFENDANTS’ MOTION FOR ) UNITED STATES DEPARTMENT PARTIAL SUMMARY JUDGMENT 15 ) OF JUSTICE, ) Date: November 8, 2018 16 ) Time: 2:00 pm Defendant. ) Courtroom: Courtroom 2, 17 ) Oakland Courthouse ) Hon. Haywood S. Gilliam Jr. 18 19 20

21 22 23 24

25 26 27 28 i. i

PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 2 of 31

1 NOTICE OF MOTION 2 PLEASE TAKE NOTICE that on November 8, 2018 at 2:00 pm in Courtroom 2, 4th Floor, 3 United States Courthouse, 1301 Clay Street, Oakland, California 94612, Plaintiff Electronic Frontier 4 Foundation (“EFF”), will, and hereby does, cross move this Court for partial summary judgment. 5 6 Pursuant to Federal Rule of Civil Procedure 56, EFF seeks a court order requiring the 7 government to release records under the Freedom of Information Act, 5 U.S.C. § 552. EFF

8 respectfully asks that this Court issue an order requiring the government to process and release all

9 records improperly withheld from the public. This cross motion is based on this notice of motion, the 10 memorandum of points and authorities in support of this cross motion, and all papers and records on 11 file with the Clerk or which may be submitted prior to or at the time of the hearing, and any further 12 evidence which may be offered. 13

14

15 DATED: August 23, 2018 Respectfully submitted,

16

17 /s/ Aaron Mackey Aaron Mackey 18 ELECTRONIC FRONTIER FOUNDATION 19 815 Eddy Street San Francisco, CA 94109 20 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 21 Attorneys for Plaintiff 22 ELECTRONIC FRONTIER FOUNDATION 23 24

25 26 27 ii. i 28 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 3 of 31

TABLE OF CONTENTS 1 TABLE OF CONTENTS ...... i 2 TABLE OF AUTHORITIES ...... ii 3 MEMORANDUM OF POINTS AND AUTHORITIES ...... 1 4 INTRODUCTION ...... 1 5 BACKGROUND ...... 2 6 I. EFF files this FOIA request seeking declassified FISC opinions that Congress required 7 to be released after passing the USA FREEDOM Act...... 2 8 II. Section 402 of the USA FREEDOM Act unambiguously requires the declassification and disclosure of all “significant” FISC opinions...... 4 9 ARGUMENT ...... 6 10 I. FOIA establishes a presumption of disclosure, and the government bears the burden 11 of demonstrating that withheld records are clearly exempt...... 6 12 II. The Government has not met its burden to withhold the Six Opinions under FOIA because the records are either improperly classified or the Vaughn index provided 13 by the Government is inadequate...... 7 14 A. USA FREEDOM requires the government to either declassify and release significant FISC opinions, like the Six Opinions, or to create a declassified 15 summary of those opinions...... 8

16 1. The Six Opinions are “significant” and thus fall within the statute’s reach...... 9 17 2. USA FREEDOM applies to each and every significant FISC opinion, without regard to the date the opinions were issued, including the Six Opinions...... 10 18 3. USA FREEDOM presents no retroactivity concerns...... 11 19 B. Because USA FREEDOM Applies to the Six Opinions, the Government has failed 20 to satisfy its burden to withhold the records under FOIA...... 15

21 1. The Six Opinions cannot be withheld in full under Exemptions 1 or 3...... 15 22 2. Alternatively, the Government’s Vaughn index is inadequate because it fails to provide as much information as possible about the withheld records...... 17 23 C. By withholding the Six Opinions in full, the Government has failed to comply with 24 its obligation to segregate and release non-exempt information...... 20

25 D. In Camera Review of the Six Opinions is Necessary...... 23 26 CONCLUSION ...... 24 27 ii. i 28 i PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 4 of 31

TABLE OF AUTHORITIES 1 2 Cases 3 [Caption Redacted], 2012 WL 9189263 (FISC Sept. 1, 2012) ...... 3 4 ACLU v. Dep’t of Def., 5 628 F.3d 612 (D.C. Cir. 2011) ...... 8

6 ACLU v. Dep’t of Justice, 7 59 F. Supp. 3d 584 (S.D.N.Y. 2014) ...... 23 8 Allen v. CIA, 636 F.2d 1287 (D.C. Cir. 1980) ...... 23 9 Animal League Defense Fund v. FDA, 10 836 F.3d 987 (9th Cir. 2016) ...... 6

11 Assassination Archives and Research Center v. Dep’t of Justice, 43 F.3d 1542 (D.C. Cir. 1995) ...... 8 12 13 Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep’t of State, 818 F. Supp. 1291 (N.D. Cal. 1992) ...... 18 14 Celotex Corp. v. Catrett, 15 477 U.S. 317 (1986) ...... 7

16 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) ...... 6 17 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 18 489 U.S. 749 (1989) ...... 6 19 Dep’t of Justice v. Tax Analysts, 20 492 U.S. 136 (1989) ...... 6, 8

21 EFF v. Dep’t of Justice, No. 11-cv-0441-ABJ (D.D.C.) ...... 3 22 EFF v. Dep’t of Justice, 23 No. 11-cv-5221-YGR (N.D. Cal) ...... 2, 21, 22, 24 24 EFF v. Dep’t of Justice,

25 No. 12-cv-1441-ABJ (D.D.C.) ...... 21, 22 26 EFF v. Dep’t of Justice, No. 14-cv-00760-RMC (D.D.C.) ...... 3 27 ii. i 28 ii PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 5 of 31

EFF v. Dep’t of Justice, 1 No. 15-cv-03186-MEJ, 2016 WL 7406429 (N.D. Cal. Dec. 22, 2016) ...... 17 2 EPIC v. Dep’t of Justice, 3 296 F. Supp. 3d 109 (D.D.C. 2017) ...... 15

4 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ...... 13 5 Feshbach v. SEC, 6 5 F. Supp. 2d 774 (N.D. Cal. 1997) ...... 7 7 Fiduccia v. Dep’t of Justice, 8 185 F.3d 1035 (9th Cir. 1999) ...... 19 9 Goldberg v. Dep’t of State, 818 F.2d 71 (D.C. Cir. 1987) ...... 6 10 Halpern v. FBI, 11 181 F.3d 279 (2d Cir. 1999) ...... 14 12 In re Production of Tangible Things, 13 BR 08-13 (FISC Jan. 28, 2009) ...... 22 14 Int’l Counsel Bureau v. Dep’t of Defense, 723 F. Supp. 2d 54 (D.D.C. 2010) ...... 18 15 Jones v. FBI, 16 41 F.3d 238 (6th Cir. 1994) ...... 23

17 Kissinger v. Reporters Committee for Freedom of the Press, 18 445 U.S. 136 (1980) ...... 8, 19 19 Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ...... 12, 13 20 Larson v. Dep’t of State, 21 565 F. 3d 857 (D.C. Cir. 2009) ...... 18

22 Long v. IRS, 23 742 F.2d 1173 (9th Cir. 1984) ...... 8 24 Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) ...... 21 25 Metro One Commc’ns, Inc. v. C.I.R., 26 704 F.3d 1057 (9th Cir. 2012) ...... 10

27 ii. i 28 iii PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 6 of 31

Minier v. CIA, 1 88 F.3d 796 (9th Cir. 1996) ...... 8 2 NLRB v. Robbins Tire & Rubber Co., 3 437 U.S. 214 (1978) ...... 1

4 Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172 (D.C. Cir. 1996) ...... 18, 19 5 Optivus Tech., Inc. v. Ion Beam Applications S.A., 6 No. 03-cv-2052, 2004 WL 5700631 (C.D. Cal. Aug. 31, 2004) ...... 10 7 Oscar Mayer Co. v. Evans, 8 441 U.S. 750 (1979) ...... 14 9 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) ...... 11 10 United States v. Estate of Romani, 11 523 U.S. 517 (1992) ...... 17 12 United States. v. Price, 13 361 U.S. 304 (1960) ...... 14 14 Vartelas v. Holder, 566 U.S. 257 (2012) ...... 13 15 Wiener v. FBI, 16 943 F.2d 972 (9th Cir. 1991) ...... 18, 19, 20

17 Statutes 18 5 U.S.C. § 552 ...... passim 19 50 U.S.C. § 1801 ...... 4 20 50 U.S.C. § 1861 ...... 21 21 50 U.S.C. § 1871 ...... 9, 14, 15 22 50 U.S.C. § 1872 ...... passim 23 50 U.S.C. § 3024 ...... 16 24

25 50 U.S.C. § 3605 ...... 16, 17 26 USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268 (2015) ...... passim 27 ii. i 28 iv PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 7 of 31

Other Authorities 1 2 Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, filed by the Hon. John D. Bates, Director of the Administrative Office of the United States Courts (Jan. 3 10, 2014) ...... 5

4 Elizabeth Gotein, The New Era of Secret Law, Brennan Center for Justice (Oct. 18, 2016) ...... 10

5 Walter F. Mondale et al., No Longer a Neutral Magistrate: The Foreign Intelligence Surveillance Court in the Wake of the War on Terror, 100 Minn. L. Rev. 2251 (2016) ...... 5 6 7 Rules 8 Fed. R. Civ. P. 56 (a) ...... 7 9 Legislative Authorities 10 161 Cong. Rec. H2916 (daily ed. May 13, 2015) ...... 11

11 H.R. Rep. No. 114-109 (2015) ...... 4, 11

12

13

14 15

16 17 18 19 20

21 22 23 24

25 26 27 ii. i 28 v PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 8 of 31

MEMORANDUM OF POINTS AND AUTHORITIES 1 2 INTRODUCTION 3 Secret law is inconsistent with American democratic traditions. Yet, for nearly forty years, an

4 important body of secret law was allowed to accumulate. Article III judges, serving on the Foreign

5 Intelligence Surveillance Court (“FISC”), issued secret decisions that interpreted federal surveillance 6 statutes and the Constitution—sometimes in ways that shaped the rights of millions of Americans. 7 This Freedom of Information Act (“FOIA”) lawsuit seeks disclosure of those important FISC 8 opinions. The records at issue, six “significant” decisions of the FISC (“Six Opinions”), have been 9 10 improperly withheld from the public in their entirety. Disclosure of these records in the agency’s 11 possession—records that document and describe interpretations of federal law that have the potential

12 to affect millions of Americans—epitomizes the central purpose of FOIA: ensuring “an informed

13 citizenry, vital to the functioning of a democratic society, needed to check against corruption and to 14 hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 15 214, 242 (1978).

16 But the fact that this is a FOIA case does not mean it exists in a legal vacuum, as the 17 18 government asks this Court to believe. To the contrary, and just like any other FOIA case, additional 19 facts or laws, outside of FOIA, may color the Court’s assessment of whether the Government has

20 satisfied its burden to withhold records. 21 That is precisely the situation here: another statute, the USA FREEDOM Act, Pub. L. No. 22 114-23, 129 Stat. 268 (2015) (“USA FREEDOM”), requires the government to undertake a 23 declassification process for each and every “significant” FISC opinion ever issued—the very type of 24 record at issue in this case. That process requires the government to either declassify and release the 25 26 opinions or to produce and release declassified summaries.

27 ii. i 28 1 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 9 of 31

The government’s obligations under USA FREEDOM carry consequences for this FOIA 1 2 case. Each of the FISC opinions at issue in this case should have been subjected to the process USA

3 FREEDOM requires. That means that either the government should have declassified the opinions,

4 or it should have created an unclassified summary of each of the opinions. But whichever path the 5 government chose, it should have produced more information in response to EFF’s request. The 6 government can choose to declassify and release versions of the Six Opinions it currently withholds 7 in full; or, as part of the government’s Vaughn index, it can reproduce the declassified summary that 8 9 USA FREEDOM obligates the government to create. But the government cannot carry its burden 10 under FOIA—either substantively or procedurally—without demonstrating compliance with USA

11 FREEDOM’s requirements.

12 Instead, the government has elected to ignore its responsibilities. It has withheld the opinions 13 in full, and in violation of USA FREEDOM, it has provided only a cursory and non-specific 14 description of the opinions as part of its Vaughn index. That decision fails to satisfy its burden under 15 FOIA and, as explained in depth below, entitles EFF to partial summary judgment. 16 17 Congress passed FOIA and USA FREEDOM to end the very type of secret law at issue in 18 this case. DOJ should not be allowed to avoid its statutory obligations any longer. Accordingly, EFF

19 respectfully urges the Court to grant its motion for partial summary judgment, to order the release of 20 responsive opinions, or alternatively, the provision of a sufficiently specific Vaughn index. 21 BACKGROUND 22 I. EFF files this FOIA request seeking declassified FISC opinions that Congress required 23 to be released after passing the USA FREEDOM Act.

24 EFF filed a FOIA request on March 7, 2016 (the “request”) seeking all significant FISC

25 opinions the court had ever issued. It was the fourth FOIA request EFF had filed seeking to make 26 public decades of secret surveillance law. See EFF v. Dep’t of Justice, No. 11-cv-5221-YGR (N.D. 27 Cal) (seeking release of “significant” FISC opinionsii. concerningi Section 215); EFF v. Dep’t of 28 2 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 10 of 31

Justice, No. 11-cv-0441-ABJ (D.D.C.) (seeking release of [Caption Redacted], 2012 WL 9189263 1 2 (FISC Sept. 1, 2012)); EFF v. Dep’t of Justice, No. 14-cv-00760-RMC (D.D.C.) (seeking release of

3 multiple FISC opinions).

4 Although the previous FOIA requests had sought one or more FISC opinions, this request 5 sought all FISC opinions that included significant interpretations of the law or Constitution. This 6 wording was intentional, as the language in the request mirrored a provision of USA FREEDOM, 7 Pub. L. No. 114-23, 129 Stat. 268 (2015), signed into law in 2015. 8 9 Specifically, the request sought: 10 Any “decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of 11 Review (as defined in section 601(e)),” [. . .] “that includes a significant construction or interpretation of any provision of law, 12 including any novel or significant construction or interpretation of the 13 term ‘specific selection term.’” USA FREEDOM Act, Pub. L. 114-23, § 402(a) (2015), codified at 50 U.S.C. § 1872(a). 14 ECF No. 12-2, Exhibit B. EFF divided its request into two different time periods, with Part 1 15 seeking all significant opinions issued from 1978 to June 1, 2015. Id. Part 2 sought all significant 16 17 opinions issued from June 2, 2015 to present. Id. Only Part 1 of the Request is at issue in this 18 motion.

19 After EFF filed this lawsuit, the parties cross-moved for partial summary judgment regarding

20 Part 1 of the request. See ECF Nos. 29, 32. Before briefing was complete, the parties agreed to stay 21 the pending cross-motions, vacate the hearing date, and confer regarding whether the government 22 would process records in response to Part 1 of the request. See ECF No. 39. The parties reached an 23 agreement and the government began to process records in response to the request. Id. 24

25 The government identified 79 FISC opinions that were responsive to EFF’s request, and it 26 initially released 42 of them in three batches throughout 2017 and early 2018. See ECF Nos. 49, 53, 27 ii. i 28 3 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 11 of 31

57 (describing the various production dates).1 The government withheld the remaining 38 documents 1 2 in full, but subsequently determined that it would re-process and release another 31 FISC opinions.

3 ECF No. 62. The parties agreed to cross-move for partial summary judgment regarding the

4 remaining six FISC opinions (“Six Opinions”) the government continues to withhold in full. ECF 5 No. 65. 6 II. Section 402 of the USA FREEDOM Act unambiguously requires the declassification 7 and disclosure of all “significant” FISC opinions.

8 On June 2, 2015, USA FREEDOM became law. Pub. L. No. 114-23, 129 Stat. 268 (2015). 9 The law was the culmination of nearly two years of congressional and public debate concerning the 10 scope and propriety of our nation’s foreign intelligence surveillance laws and practices. See, e.g., 11 H.R. Rep. No. 114-109 (2015). 12 USA FREEDOM worked reforms to various aspects of the nation’s foreign intelligence 13 14 surveillance authorities, including changes to controversial surveillance programs operated under the

15 “business records” and pen-register/trap and trace provisions of the Foreign Intelligence Surveillance

16 Act (“FISA”). 50 U.S.C. § 1801 et seq.; USA FREEDOM, §§ 101-110, §§ 201-202 (2015). 17 Relevant here, USA FREEDOM imposed a variety of increased transparency and reporting 18 requirements on the intelligence community, see, e.g., §§ 108, 601-605, and it instituted reforms to 19 the procedures of the FISC, the statutorily created court, composed of Article III judges, that reviews 20

21 the legality of government applications to conduct foreign intelligence surveillance. See id. at §§ 22 401-402; see also H.R. Rep. No. 114-109, pt. 1, at 2.

23 Section 402 of USA FREEDOM ended the secrecy shrouding important opinions of the

24 FISC. See H.R. Rep. No. 114-109, pt. 1, at 2. Section 402 states that “the Director of National

25 1 The government’s memorandum in support of its cross-motion for partial summary judgment states 26 that 80 FISC opinions were responsive to EFF’s request. Def. Mem. at 3. In correspondence with EFF since the filing of its motion, the government clarified that in its most recent production, it had 27 miscounted a FISC order and its attachment as two separate documents, rather than as one. Hence it released 31 opinions to EFF on August 20, for a total ii.of 79i records responsive to the request. 28 4 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 12 of 31

Intelligence, in consultation with the Attorney General shall conduct a declassification review of 1 2 each decision, order, or opinion issued by the [FISC and FISCR] that includes a significant

3 construction or interpretation of any provision of law” and “consistent with that review, make

4 publicly available to the greatest extent practicable each such decision, order, or opinion.” Id. 5 The need for greater transparency surrounding FISC decisions owed, at least in part, to the 6 FISC’s evolving role in the nation’s foreign intelligence surveillance regime. See Walter F. Mondale 7 et al., No Longer a Neutral Magistrate: The Foreign Intelligence Surveillance Court in the Wake of 8 9 the War on Terror, 100 Minn. L. Rev. 2251, 2263-69 (2016) (“No Longer a Neutral Magistrate”). 10 Congress originally established the FISC to serve as a neutral magistrate reviewing and approving

11 applications for individualized foreign surveillance targets. Id. at 2262-63.

12 But in the wake of the Sept. 11 attacks and subsequent amendments to FISA in 2008, the 13 FISC’s role began to shift. In addition to approving individual applications to conduct surveillance, 14 the FISC became a “meta-arbiter,” approving broad surveillance programs or the procedures used by 15 the government to implement those programs. Mondale, No Longer a Neutral Magistrate, 100 Minn. 16 17 L. Rev. at 2263-68. Although these significant matters only constitute a “small handful” of the 18 FISC’s caseload, they have disproportionate effects: these cases often involve novel surveillance

19 techniques, complicated technical or legal questions, or implicate the privacy interests of large 20 numbers of people. See Comments of the Judiciary on Proposals Regarding the Foreign Intelligence 21 Surveillance Act, filed by the Hon. John D. Bates, Director of the Administrative Office of the 22 United States Courts (Jan. 10, 2014) at 1, 3.2 23 Section 402 sought to shed light on these important FISC decisions. As explained above, 24

25 EFF’s request sought disclosure of the FISC opinions subject to Section 402. 26

27 2 Available at https://www.fjc.gov/sites/default/files/2015/TRFISC02.pdf.ii. i 28 5 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 13 of 31

ARGUMENT 1 2 I. FOIA establishes a presumption of disclosure, and the government bears the burden of demonstrating that withheld records are clearly exempt. 3 FOIA safeguards the American public’s right to know “what their government is up to.” 4 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). 5 6 “[D]isclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Interior v. Klamath Water 7 Users Protective Ass’n, 532 U.S. 1, 8 (2001).

8 FOIA requires disclosure of all agency records at the request of the public unless the records

9 fall within one of nine narrow exemptions. See 5 U.S.C. § 552(b). 10 Once the agency has received the request, it is obligated to search for and process responsive 11 records, and to disclose any information that does not fall within one of the Act’s exemptions. See 5 12 U.S.C. § 552(a)(3), (a)(6). The exemptions “have been consistently given a narrow compass,” and 13 14 agency records that “do not fall within one of the exemptions are ‘improperly’ withheld.” Dep’t of 15 Justice v. Tax Analysts, 492 U.S. 136, 151 (1989).

16 In FOIA cases, a court reviews the government’s decision to withhold records de novo, and

17 the government bears the burden of proving records have been properly withheld. 5 U.S.C. 18 § 552(a)(4)(B); Reporters Comm., 489 U.S. at 755. Even national security claims do not alter a 19 court’s “independent responsibility” to undertake a thorough de novo evaluation of the government’s 20 withholdings. Goldberg v. Dep’t of State, 818 F.2d 71, 76-77 (D.C. Cir. 1987) (noting Congress 21 22 amended FOIA to clarify its “intent that courts act as an independent check on challenged 23 classification decisions”).

24 FOIA disputes involving the propriety of agency withholdings are commonly resolved on

25 motions for summary judgment. See Animal League Defense Fund v. FDA, 836 F.3d 987, 989 (9th 26 Cir. 2016) (en banc). As with any case, summary judgment is proper when the moving party shows 27 that “there is no genuine dispute as to any material factii. andi the movant is entitled to judgment as a 28 6 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 14 of 31

matter of law.” Fed. R. Civ. P. 56 (a); see also Feshbach v. SEC, 5 F. Supp. 2d 774, 779 (N.D. Cal. 1 2 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

3 II. The Government has not met its burden to withhold the Six Opinions under FOIA because the records are either improperly classified or the Vaughn index provided by 4 the Government is inadequate.

5 In passing USA FREEDOM, Congress required the government to declassify and release all 6 significant FISC opinions, including the Six Opinions it withholds in this case, or alternatively, to 7 provide a declassified summary of those opinions. EFF’s FOIA request sought the fruits of the 8 transparency requirements Congress mandated in USA FREEDOM. Because the government has not 9 10 complied with USA FREEDOM’s declassification requirements, it has failed to meet its burden 11 under FOIA to withhold the Six Opinions.

12 The government mischaracterizes EFF’s request and its arguments regarding the import of 13 USA FREEDOM. The government argues that EFF is seeking relief under Section 402 independent 14 of FOIA. Def. Mot. at 16-17 (ECF No. 66). This is incorrect. Section 402 is relevant because 15 Congress has required the Executive Branch to proactively review and declassify all significant 16 17 FISC opinions, or to produce declassified summaries in cases where declassification was not 18 possible. EFF’s request simply asks the government to provide copies of the significant FISC

19 opinions it has declassified.

20 In light of Congress commanding the Executive Branch to review and declassify significant 21 FISC opinions to the greatest extent possible, the government cannot satisfy its burden in response to 22 EFF’s FOIA request by claiming that the opinions can be withheld in their entirety because they are 23 properly classified under Exemption 1, or that other statutes bar their release under Exemption 3. As 24

25 explained below, the government has failed to produce declassified versions of the opinions or to 26 provide a Vaughn index containing a declassified summary of them; thus it has not met its

27 obligations to withhold the Six Opinions under FOIA. Asking this Court to construe USA ii. i 28 7 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 15 of 31

FREEDOM and its consequences for the government’s withholdings is thus no different than asking 1 2 federal courts to construe federal tax law for its implications in a FOIA suit or, more relevant here,

3 the Executive Order governing classification. See Long v. IRS, 742 F.2d 1173, 1177 (9th Cir. 1984);

4 ACLU v. Dep’t of Def., 628 F.3d 612, 619-25 (D.C. Cir. 2011) (interpreting Executive Order 12958, 5 which at the time governed classification, in a FOIA case). 6 The government’s reliance on cases such as Kissinger v. Reporters Committee for Freedom 7 of the Press, 445 U.S. 136 (1980) and Assassination Archives and Research Center v. Dep’t of 8 9 Justice, 43 F.3d 1542 (D.C. Cir. 1995) are thus unhelpful because EFF is not seeking to enforce a 10 private right of action under USA FREEDOM. Def. Mem. at 16-18. EFF agrees with the government

11 that this case sounds only in FOIA. Id. at 16. But, as explained above, USA FREEDOM’s

12 transparency requirements inform how the government must meet its burden in this case, given that 13 this litigation concerns the very records USA FREEDOM requires the government to declassify. 14 Moreover, FOIA requires this Court to interpret USA FREEDOM because it bears precisely 15 on the question of whether the government has improperly withheld the specific agency records at 16 17 issue in this case. Because interpreting USA FREEDOM does not require the court to “devise 18 remedies” or otherwise enjoin the government outside the scope of FOIA, the cases cited by the

19 government such as Tax Analysts, 492 U.S. 136 (1989), and Minier v. CIA, 88 F.3d 796, 803 (9th 20 Cir. 1996) are inapposite. Indeed, as explained in this cross-motion, determining whether the 21 government has complied with USA FREEDOM resolves the question of whether it has complied 22 with FOIA. 23 A. USA FREEDOM requires the government to either declassify and release 24 significant FISC opinions, like the Six Opinions, or to create a declassified

25 summary of those opinions. 26 The plain text of Section 402 places an affirmative obligation on the government to review

27 and declassify all “significant” opinions issued by the FISC or to create a declassified summary. ii. i 28 8 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 16 of 31

Specifically, in full, Section 402 of the Act states: 1 2 Declassification Required -- Subject to subsection (b), the Director of National Intelligence, in consultation with the Attorney General, shall 3 conduct a declassification review of each decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign 4 Intelligence Surveillance Court of Review (as defined in section 5 601(e)) that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or 6 interpretation of the term ‘specific selection term’, and, consistent with that review, make publicly available to the greatest extent practicable 7 each such decision, order, or opinion.

8 USA FREEDOM § 402(a) (codified at 50 U.S.C. § 1872). 9 Section 402 thus requires the government to “conduct a declassification review” and “make 10 publicly available to the greatest extent practicable” all FISC opinions that include a “significant 11 construction or interpretation of any provision of law.” Id. Section 402 allows the opinions to be 12 released in redacted form, see § 402(b), and it provides an alternative to disclosure—the creation of a 13 14 declassified summary—when the government determines national security concerns prevent it from

15 releasing the opinion, even in redacted fashion. See § 402(c)(2).

16 Significantly, Section 402 does not allow the Government to withhold “significant” opinions 17 in their entirety—as they have done here. 18 1. The Six Opinions are “significant” and thus fall within the statute’s reach. 19 By definition, all of the FISC opinions responsive to EFF’s request are significant. As the 20 parties agreed, the FISC opinions processed in response to EFF’s request included those the 21 22 government submitted to Congress because they include a “significant” construction or 23 interpretation of the Foreign Intelligence Surveillance Act (“FISA”), “any [other] provision of law,”

24 or were subject to other congressional reporting requirements about the FISC’s activities. See 50

25 U.S.C. §§ 1871(a)(5), (c)(1) & (c)(2); 50 U.S.C. § 1881f(b)(1)(D); ECF No. 39. Further, the 26 government had previously identified all of the opinions processed here as significant. Elizabeth 27 ii. i 28 9 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 17 of 31

Gotein, The New Era of Secret Law, Brennan Center for Justice 6 (Oct. 18, 2016).3 1 2 2. USA FREEDOM applies to each and every significant FISC opinion, without regard to the date the opinions were issued, including the Six Opinions. 3 USA FREEDOM applies to the Six Opinions at issue in this case, regardless of when the 4 opinions were written. 5 Section 402 is clear: the declassification requirement extends to “each” significant FISC 6 7 opinion. 50 U.S.C. § 1872(a). The statute requires that “the Director of National Intelligence, in 8 consultation with the Attorney General shall conduct a declassification review of each decision,

9 order, or opinion issued by the [FISC and FISCR] that includes a significant construction or 10 interpretation of any provision of law.” Id. (emphasis added). 11 The plain meaning of the word “each” is “every one of two or more people or things 12 considered separately.” Merriam-Webster Dictionary (emphasis added).4 “Similarly, the Oxford 13 English Dictionary (2d ed.1989) defines the word ‘each’ as meaning ‘every.’” Optivus Tech., Inc. v. 14 15 Ion Beam Applications S.A., No. 03-cv-2052, 2004 WL 5700631, at *13 (C.D. Cal. Aug. 31, 2004);

16 see also Metro One Commc’ns, Inc. v. C.I.R., 704 F.3d 1057, 1061 (9th Cir. 2012) (“To ascertain the

17 plain meaning of terms, we may consult the definitions of those terms in popular dictionaries.”). 18 There is no temporal restriction on the FISC opinions to be reviewed in the statute. The only 19 limitation is that the FISC opinion must contain a “significant construction or interpretation” of the 20 law. 50 U.S.C. § 1872(a) 21 22 Accordingly, the most straightforward reading of Section 402 is that the government must 23 undertake a declassification review of “each,” and every one, of the FISC’s “significant” opinions—

24 no matter when those opinions were written. The government must then disclose those opinions “to

25 the greatest extent practicable,” 50 U.S.C. § 1872(a), including the Six Opinions at issue in this 26 3 Available at 27 https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law_0.pdf. 4 Available at http://www.merriam-webster.com/dictionary/eachii. i . 28 10 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 18 of 31

motion. 1 2 Because the plain text of Section 402 is unambiguous, the court need not consider the

3 legislative history of USA FREEDOM to construe the statute. Satterfield v. Simon & Schuster, Inc.,

4 569 F.3d 946, 951 (9th Cir. 2009) (citation omitted) (noting the court’s “inquiry begins with the 5 statutory text, and ends there as well if the text is unambiguous”). Nonetheless, the legislative history 6 of USA FREEDOM supports that the plain language of Section 402 requires the government to 7 declassify all existing significant FISC opinions. The chief drafter of USA FREEDOM, Rep. Jim 8 9 Sensenbrenner (R-Wisc.), stated that Section 402 was written to bring “an end to secret laws” by 10 requiring the declassification of “significant legal decisions.” 161 Cong. Rec. H2916 (daily ed. May

11 13, 2015).5 The government’s interpretation of USA FREEDOM would permit nearly forty years of

12 significant FISC opinions to remain secret, a far cry from bringing an end to secret law as intended 13 by the statute’s drafters. 14 Further, the House Judiciary Committee’s report on USA FREEDOM states that Section 402 15 was enacted to create “greater transparency of national security programs operated pursuant to 16 17 FISA.” H.R. Rep. No. 114-109, pt. 1, at 2 (2015). Section 402 accomplishes this goal by requiring 18 the Executive Branch “to conduct a declassification review of each decision, order, or opinion of the

19 FISC or FISCR that includes a significant construction or interpretation of law.” Id. at pt. 1, 23 20 (emphasis added). 21 3. USA FREEDOM presents no retroactivity concerns. 22 Because the text of Section 402 explicitly mandates the review and declassification of all 23 significant FISC opinions, there is no question about whether Congress intended the provision to 24 require the disclosure of FISC decisions issued before USA FREEDOM was passed. The 25 26 5 Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, identified Rep. 27 Sensenbrenner as “the chief sponsor of this legislation.” 161 Cong. Rec. H2916 (daily ed. May 13, 2015). ii. i 28 11 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 19 of 31

government’s arguments to the contrary require the Court to look beyond the plain text of the statute 1 2 and should thus be rejected. See Def. Mem. at 20-25.

3 The plain text of Section 402 directs that the government “shall conduct a declassification

4 review” of significant FISC decisions. 50 U.S.C. § 1872(a) (emphasis added). The statute thus 5 imposes a new, mandatory, and forward-looking transparency obligation on the government—an 6 obligation that extends to any “significant” and currently classified FISC decision. Section 402 7 presents no retroactivity concerns because it reaches only those FISC opinions that are currently 8 9 classified. The provision thus regulates the present classification status of FISC opinions, not the 10 dates they were issued.

11 By advocating for some type of temporal scope, what the government really asks this Court

12 to do is add language to the statute—language limiting the government’s declassification obligations 13 to those “significant” opinions written after the statute was passed. Def. Mem. at 20-22. 14 There is only one problem: the language of the statute. Section 402 applies to all classified 15 FISC decisions—those in existence when the statute was passed and those written in the future. As 16 17 explained above, the only limitation to Section 402’s reach is that the opinions requiring 18 declassification review must be “significant.”

19 The government complains that applying USA FREEDOM to FISC opinions written before 20 the law was passed would make the statute operate retroactively. But a statute is “not made 21 retroactive merely because it draws upon antecedent facts for its operation”; nor is a statute 22 retroactive simply because it “unsettle[s]” expectations about past events. Landgraf v. USI Film 23 Prods., 511 U.S. 244, 269 n. 24 (1994) (citation omitted). As the Supreme Court recognized in 24

25 Landgraf, a new law that changes zoning regulations may upset the expectations of someone who

26 previously purchased affected property, and a law banning gambling can harm a developer who had

27 begun to build a casino. Id. But the fact that the law imposes new, prospective burdens or alters ii. i 28 12 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 20 of 31

expectations going forward does not, by itself, mean the law has an impermissible retroactive effect. 1 2 So too here: simply because significant FISC opinions were issued before USA FREEDOM’s

3 enactment does not mean Section 402’s prospective obligation to declassify those opinions operates

4 retroactively, even if it unsettles the government’s expectations about the secrecy of those opinions. 5 Even applying the government’s proposed retroactivity analysis, the government’s ability to 6 classify a FISC opinion is not the type of completed past event that can give rise to retroactivity 7 concerns. Def. Mem. at 23-24. The presumption against retroactivity ensures that new legal 8 9 consequences are not unfairly attached to completed events in ways that “impair rights a party 10 possessed when he acted, increase a party’s liability for past conduct, or impose new duties with

11 respect to transactions already completed.” Landgraf, 511 U.S. at 280. The issuance of an opinion,

12 by an Article III court, and the government’s ongoing secrecy assertions concerning that opinion, fail 13 to raise the type of concerns about the government’s “rights,” “liability” or completed “transactions” 14 that are at the center of the cases cited by the government. Def. Mem. at 23-24. EFF is not aware of a 15 single case, and the government has not provided any, where a statute was found to impair a 16 17 government “right,” let alone establish that such a right extends to an expectation that classified 18 materials will remain so.6

19 Ultimately, Section 402 is akin to any other statute that imposes new transparency 20 requirements on the government, much like FOIA. FOIA was first passed in 1966 and requires 21 22 6 The cases cited by the government all concern whether subsequent changes in law retroactively 23 impaired an individual person’s legal rights or liabilities. Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006), considered whether retroactive application of stricter immigration laws impaired an 24 immigrant’s ability to seek naturalization under an earlier, less punitive standard. Vartelas v. Holder,

25 566 U.S. 257 (2012), considered whether amendments to immigration laws prohibiting permanent residents with felony convictions from traveling abroad applied to a resident whose conviction 26 predated the change in law, as the previous statute allowed for such travel. Landgraf, 511 U.S. 244, considered whether changes to Title VII of the Civil Rights Act that permitted jury trials and 27 recovery for damages could apply to a pending suit that concerned acts occurring prior to the amended law’s passage. ii. i 28 13 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 21 of 31

federal agencies to make records public upon request—including requests for agency records that 1 2 existed prior to FOIA’s passage. See, e.g., Halpern v. FBI, 181 F.3d 279, 285 (2d Cir. 1999)

3 (seeking agency records from the 1930s). To EFF’s knowledge, the government has never argued

4 that FOIA’s disclosure regime is limited to records created after FOIA was passed; yet that is exactly 5 what the government argues with respect to Section 402. To the contrary, Section 402, like FOIA, 6 applies without regard to the date the records were written. 7 That the government resorts to the legislative history of other bills, that were not a part of 8 9 USA FREEDOM, and were never enacted (let alone voted on) to support their retroactivity claims 10 demonstrates their shortcomings. Def. Mem. at 21-22. The intent of the Congress that enacted

11 Section 402 controls its interpretation, however, not some earlier intention by a previous Congress

12 that did not act. See Oscar Mayer Co. v. Evans, 441 U.S. 750, 758 (1979). DOJ’s argument ignores 13 the plain text of an act duly passed by Congress in favor of a bill that never became law. Then, DOJ 14 asks that this Court find more persuasive the legislative history of the bill that did not pass, rather 15 than the legislative history of USA FREEDOM that EFF describes above. But “[i]nferences from 16 17 legislative history cannot rest on so slender a reed.” United States. v. Price, 361 U.S. 304, 313 18 (1960).

19 Finally, the government’s comparison of the language of 50 U.S.C. 1871 (c)(2) with USA 20 FREEDOM’s transparency provisions supports a finding that Section 402 applies to all significant 21 FISC opinions without respect to time. Def. Mem. 21-22. The government argues that because 22 section 1871 (c)(2) requires disclosure to Congress of FISC opinions authorized during the previous 23 five years, the fact that USA FREEDOM includes no similar temporal provision means that Section 24

25 402 is not retroactive. But, as discussed above, the fact that Section 402 contains no temporal

26 provision demonstrates precisely that Congress sought much broader public transparency from the 27 ii. i 28 14 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 22 of 31

FISC than section 1871 (c)(2)’s congressional reporting requirement.7 1 2 B. Because USA FREEDOM Applies to the Six Opinions, the Government has failed to satisfy its burden to withhold the records under FOIA. 3 The application of USA FREEDOM to the Six Opinions carries consequences for this FOIA 4 case—consequences the government would prefer this Court ignore. Specifically, the government’s 5 6 obligations under USA FREEDOM require either: (1) that the government declassify and release the 7 Six Opinions in redacted form, or (2) that, as part of its Vaughn index, the government reproduce

8 declassified summaries of the opinions. Because the government has not released the Six Opinions 9 or included a detailed declassified summary of the withheld opinions in its Vaughn index, it has 10 either failed to satisfy its substantive burden to withhold records or its procedural obligations under 11 FOIA. 12 1. The Six Opinions cannot be withheld in full under Exemptions 1 or 3. 13 The government cannot withhold the Six Opinions in full under Exemption 1 because the 14 15 exemption only protects from disclosure information that is “properly classified.” 5 U.S.C. §

16 552(b)(1). The government cannot show that the Six Opinions have been properly classified to

17 Exemption 1’s standard because they have not demonstrated that they have complied with USA 18 FREEDOM Act’s declassification review requirements. Def. Mem. 6-8. 19

20

21 7 The Court should decline to follow EPIC v. Dep’t of Justice, 296 F. Supp. 3d 109, 127 (D.D.C. 22 2017) because the decision is incomplete and poorly reasoned. Def. Mem. 19. First, the records at issue in the EPIC decision concerned government briefing submitted to the FISC and reports sent to 23 Congress about certain national security activities, and not FISC opinions themselves like those at issue here. Id. at 115. Second, even though the relevance of USA FREEDOM to the documents at 24 issue in that case is unclear, the plaintiff in EPIC appeared to argue that the statute required that the

25 materials be released without qualification. Id. at 127. This is a misreading of the statute because, as described throughout, USA FREEDOM requires declassification of FISC opinions to the greatest 26 extent practicable or, alternatively, that the government release a declassified summary. Third, the court’s brief statement that Congress did not intend for USA FREEDOM to apply retroactively 27 failed to address the plain language of the statute and that it applied to the present classification status of FISC opinions, rather than the date they wereii. issued. i 28 15 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 23 of 31

Section 402 requires that the “the Director of National Intelligence, in consultation with the 1 2 Attorney General,” conduct a declassification review of the Six Opinions and that they make them

3 “publicly available to the greatest extent practicable.” 50 U.S.C. § 1872(a). Because the government

4 does not indicate that the Director of National Intelligence and Attorney General conducted the 5 declassification review required by Section 402, it cannot meet its burden to show that Six Opinions 6 remain properly classified. Def. Mem. 6-8. Notably, one of the declarants works in the Office of the 7 Director of National Intelligence and is silent on undertaking Section 402’s declassification review. 8 9 Declaration of Patricia Gaviria ¶¶ 20-47 (“Gaviria Decl.”), ECF 66-1, Exhibit A. 10 The government’s reliance on the National Security Act of 1947, 50 U.S.C. § 3024(i)(1), and

11 the National Security Act of 1959, 50 U.S.C. § 3605, also fall short of meeting their burden to

12 withhold records under Exemption 3. Def. Mem. 10-11; Gaviria Decl. ¶¶ 48-51. 13 With respect to 50 U.S.C. § 3024(i)(1), the statute requires the Director of National 14 Intelligence to “protect sources and methods from unauthorized disclosure” (emphasis added). USA 15 FREEDOM, however, not only authorizes the Director of National Intelligence to disclose the 16 17 records at issue here, but requires him to disclose them “to the greatest extent practicable” or to 18 certify that they cannot be disclosed and to create a declassified summary of them. 50 U.S.C. §

19 1872(a), (c). Disclosure of the Six Opinions thus would not lead to the “unauthorized” disclosure of 20 intelligence sources and methods in any sense. Rather, disclosure is specifically mandated. As a 21 result, Section 3024(i)(1), through Exemption 3, does not apply. 22 With respect to 50 U.S.C. § 3605, although the statute restricts disclosure of certain 23 information concerning National Security Agency activities, it does not supplant the government’s 24

25 duties to review and disclose, to the greatest extent possible, the FISC opinions at issue here as

26 required by another duly passed law. To the extent the two statutes are in tension, USA

27 FREEDOM—a later, more specific statute concerning disclosure of the records at issue here— ii. i 28 16 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 24 of 31

governs. See United States v. Estate of Romani, 523 U.S. 517, 532 (1992) (applying the statutory 1 2 interpretation canon that in interpreting two statutes, the later, more specific statute governs). So

3 although Section 3605 authorizes withholding records under Exemption 3, it cannot be interpreted in

4 a way that permits withholding the very same information that USA FREEDOM requires the 5 government to disclose in this case.8 6 Just as the government makes no mention of whether it conducted a declassification review 7 under USA FREEDOM for purposes of its Exemption 1 claims, it also fails to indicate whether it 8 9 considered the statute’s substantive transparency requirements in the context of its Exemption 3 10 claims. Def. Mem. 10-11; Gaviria Decl. ¶¶ 48-51. In light of this failure, the government must either

11 release the opinions as required by Section 402 or, as explained below, indicate that it cannot do so

12 and release a declassified summary in its Vaughn index. 13 2. Alternatively, the Government’s Vaughn index is inadequate because it fails 14 to provide as much information as possible about the withheld records. 15 USA FREEDOM requires that, if the government determines that it cannot release one or

16 more of the Six Opinions, it must alternatively produce a declassified summary of those FISC

17 opinions. FOIA, effectively, requires the same. 18

19 8 The government also withholds Document 1 under Exemptions 7(A) and 7(E). Def. Mem. 12-15; 20 Declaration of David M. Hardy ¶¶ 18-23 (“Hardy Decl.”). At the outset, in light of USA FREEDOM’s requirement that the Six Opinions be declassified and released to the greatest extent 21 practicable, withholding Document 1 in full under Exemptions 7(A) and 7(E) is incompatible with 22 the statute’s transparency mandate. Hardy Decl. ¶ 25 (determining that Document 1 must be withheld in full pursuant to Exemptions 7(A) and 7(E)). In any event, the government has failed to 23 meet its burden to withhold the record under both exemptions because it has not demonstrated that disclosure would harm an ongoing law enforcement investigation or that the FISC opinion discloses 24 law enforcement techniques or procedures, or guidelines for prosecution. The discussion of both

25 exemptions in Mr. Hardy’s declaration is too conclusory and insufficiently detailed. See EFF v. Dep’t of Justice, No. 15-cv-03186-MEJ, 2016 WL 7406429 *13, *19 (N.D. Cal. Dec. 22, 2016) 26 (holding government’s declarations fall short of meeting burden under Exemptions 7(A) and 7(E)). Additionally, a described below, the government’s also fails to meet its burden to withhold the 27 records under Exemptions 7(A) and 7(E) because it has failed to segregate and disclose non-exempt material in the FISC opinion. ii. i 28 17 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 25 of 31

To satisfy its procedural obligations under FOIA, agencies are required to produce a 1 2 specialized type of affidavit, known as a Vaughn Index, which catalogues and describes the

3 documents withheld from the requester. Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991). The

4 purpose of an agency’s Vaughn index and accompanying affidavits is to “afford the FOIA requester 5 a meaningful opportunity to contest, and the district court an adequate foundation to review, the 6 soundness of the withholding.” Id. (citation omitted). 7 Critically, the Vaughn index must “reveal as much detail as possible” about the withheld 8 9 documents. Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (emphasis 10 added). In King v. Dep’t of Justice, the D.C. Circuit reviewed the case law applying Vaughn,

11 emphasizing that:

12 [s]pecificity is the defining requirement of the Vaughn index and 13 affidavit . . . . To accept an inadequately supported exemption claim “would constitute an abandonment of the trial court’s obligation under 14 the FOIA to conduct a de novo review.”

15 830 F.2d 210, 219 (D.C. Cir. 1987) (citations omitted); see also Bay Area Lawyers Alliance

16 for Nuclear Arms Control v. Dep’t of State, 818 F. Supp. 1291, 1296 (N.D. Cal. 1992) (quoting 17 King, 830 F.2d at 224). 18 The general requirements of specificity in agency affidavits and Vaughn indices are no less 19 applicable in cases involving national security-sensitive information. “Even when applying 20

21 [E]xemption 1, ‘conclusory affidavits that . . . are overly vague or sweeping will not, standing alone, 22 carry the government’s burden.’” Int’l Counsel Bureau v. Dep’t of Defense, 723 F. Supp. 2d 54, 63

23 (D.D.C. 2010) (quoting Larson v. Dep’t of State, 565 F. 3d 857, 864 (D.C. Cir. 2009)). “The

24 description and explanation the agency offers should reveal as much detail as possible as to the

25 nature of the document, without actually disclosing information that deserves protection.” Oglesby, 26 79 F.3d at 1176. 27 ii. i 28 18 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 26 of 31

This is especially true when the agency has withheld documents in their entirety. Fiduccia v. 1 2 Dep’t of Justice, 185 F.3d 1035, 1043 (9th Cir. 1999). In these circumstances, “the requester needs a

3 Vaughn index of considerable specificity to know what the agency possesses but refuses to

4 produce.” Id. (emphasis added). Ultimately, “[u]nless the agency discloses ‘as much information as 5 possible without thwarting the [claimed] exemption’s purpose, the adversarial process is 6 unnecessarily compromised.’” Wiener, 943 F.2d at 979 (second alteration in original) (citation 7 omitted). 8 9 The government’s Vaughn index falls far short of FOIA’s requirements, as it could have 10 provided much more detail about the Six Opinions it withholds in full. The Vaughn’s inadequacy is

11 particularly striking in light of USA FREEDOM’s requirement that the government produce a

12 declassified summary of FISC opinions that it determines it cannot publicly release. 50 U.S.C. § 13 1872(c). Thus, to provide “as much detail as possible” about the withheld records here, Oglesby, 79 14 F.3d at 1176, the government should have included within its Vaughn index the “unclassified 15 statement . . . summarizing the significant construction or interpretation” for each of the Six 16 17 Opinions. 50 U.S.C. § 1872(c)(2)(A). That summary should also include “a description of the 18 context in which the matter arises and any significant construction or interpretation of any statute,

19 constitutional provision, or other legal authority relied on by the decision.” Id. Because the Vaughn 20 index submitted by the government does not include these summaries, it has failed to satisfy its 21 procedural obligations under FOIA.9 22 Even apart from USA FREEDOM’s requirements, the government’s Vaughn index is 23 deficient by any measure. See Wiener, 943 F.2d at 979. The government’s description of the Six 24

25 9 To be clear, EFF is not seeking the creation of records through FOIA, which the law does not 26 allow. Kissinger, 445 U.S. at 152 (“The Act does not obligate the agencies to create or retain documents.”). Rather, those summaries should already exist. To the extent the government seeks to 27 withhold the Six Opinions, those summaries should be included in the government’s Vaughn index here. ii. i 28 19 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 27 of 31

Opinions consists of a short table in its motion and declaration that describes the documents as 1 2 follows:

3 • Document 1: “FISC Supplemental Order” 4 • Document 2: “FISC Primary Order” 5 • Document 3: “FISC Amendment to Primary Order” 6 • Document 4: “FISC Primary Order” 7 8 • Document 5: “FISC Supplemental Opinion”

9 • Document 6: “FISC Order”

10 Def. Mem. 4; Gaviria Decl. ¶ 16; Hardy Decl. ¶ 7. 11 The declarations submitted in support of withholding the Six Opinions do not provide much 12 further detail regarding the context or subject of the FISC records. The description of the classified 13 materials within the Six Opinions does not go beyond identifying general categories of information 14 that can be classified under Executive Order 13526, such as “intelligence activities” and 15

16 “intelligence sources or methods.” Gaviria Decl. ¶¶ 27-47. This failure extends to the government’s

17 withholding of Document 1 under Exemptions 7(A) and 7(E), as the bare descriptions in the

18 government’s Vaughn index do not afford EFF “a meaningful opportunity to contest, and the district 19 court an adequate foundation to review, the soundness of the withholding.” Wiener, 943 F.3d at 977. 20 The government has thus failed to meet its burden to adequately describe the Six Opinions it 21 withholds. 22 23 C. By withholding the Six Opinions in full, the Government has failed to comply with its obligation to segregate and release non-exempt information. 24 Even setting aside that the government cannot justify withholding the Six Opinions as 25 described above, it has also failed to meet its burden for an additional, independent reason: it has not 26 to properly segregated exempt material and otherwise disclosed the records. 27 ii. i 28 20 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 28 of 31

Because the “focus of the FOIA is information, not documents,” FOIA’s segregability 1 2 requirement ensures that agencies do not use exemption claims to broadly shield otherwise

3 releasable information from disclosure, even in otherwise exempt records. Mead Data Cent., Inc. v.

4 Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). FOIA thus requires that “[a]ny 5 reasonably segregable portion of a record shall be provided to any person requesting such record 6 after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). This prevents agencies from 7 relying on “sweeping, generalized claims of exemption for documents,” even if some portions of 8 9 those documents could be disclosed. Mead Data Cent., Inc., 566 F.2d at 260. Yet that is likely what 10 has happened here.

11 The government claims that it has reviewed the Six Opinions and determined that it cannot

12 release a single word of the withheld records. Def. Mem. 15-16; Gaviria Decl. ¶¶ 54-56. That claim 13 is a familiar one to EFF, and the Court should not view the government’s claims here in isolation. 14 Indeed, in two separate cases litigated by EFF involving the withholding of other FISC opinions— 15 EFF v. Dep’t of Justice, No. 11-cv-5221-YGR (N.D. Cal.) and EFF v. Dep’t of Justice, No. 12-cv- 16 17 1441-ABJ (D.D.C.)—the agency asserted functionally identical, and overbroad, claims. In both 18 cases, once EFF successfully secured the release of the opinions at issue, it was apparent that the

19 agency’s earlier exemption claims went much further than the law allowed. 20 For example, in a case concerning significant FISC opinions related to the business records 21 provision of FISA, 50 U.S.C. § 1861, DOJ asserted that no information could be segregated and 22 released from the numerous FISC opinions it withheld in full. See EFF v. Dep’t of Justice, No. 11- 23 cv-5221-YGR (N.D. Cal.). Once disclosed, however, it was clear the agency had used its exemption 24

25 claims to prevent disclosure of descriptions of repeated violations of the FISC’s orders—information

26 that did not describe any sensitive sources or methods and that was readily segregable from any

27 arguably sensitive content. For example, DOJ initially withheld the following sentences under ii. i 28 21 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 29 of 31

Exemptions 1 and 3: 1 2 • “The Court is exceptionally concerned about what appears to be a flagrant 3 violation of its order in this matter[.]” Order Regarding Preliminary Notice of Compliance Incident at 4-5, In re Production of Tangible Things, BR 08-13 (FISC 4 Jan. 28, 2009).

5 • “[T]he Court must have every confidence that the government is doing its utmost 6 to ensure that those responsible for implementation fully comply with the Court’s orders. The Court no longer has such confidence.” Order at 12, In re Production 7 of Tangible Things, BR 08-13 (FISC March 2, 2009).

8 As the district court later determined, despite the agency’s sweeping exemption claims, the 9 opinions at issue had been withheld “in their entirety when a disclosure of reasonably segregable 10 portions of those documents would have been required.” Order Re: Production of Documents for In 11 12 Camera Review at 2, EFF v. Dep’t of Justice, No. 11-cv-5221-YGR (N.D. Cal. June 13, 2014) (ECF 13 No. 85).

14 Likewise, in another case involving yet another significant FISC opinion, the agency

15 identically asserted, again in litigation with EFF, that the opinion was exempt in its entirety under

16 Exemptions 1 and 3 and that no information could be segregated and released. See Pl.’s Cross 17 Motion for Summary Judgment at 10-13, filed in EFF v. Dep’t of Justice, No. 12-cv-1441-ABJ 18 (D.D.C.) (ECF No. 18). After the FISC Opinion was eventually disclosed, it was again apparent the 19 20 agency’s previous exemption claims were far too broad and unsupported by law. For example, the

21 October 3 Opinion contained the full text of the Fourth Amendment—again, information the agency

22 claimed could not be segregated and released without threatening harm to national security. See id. 23 (describing government’s withholding of text of Fourth Amendment and other information). 24 Indeed, another district court judge—in a similar case concerning disclosure of FISC 25 opinions—described the agency’s various arguments against disclosure as “dissembling,” the 26 “hallmarks of opportunistic rummaging,” and “incorrect and inconsistent.” ACLU v. Dep’t of 27 ii. i 28 22 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 30 of 31

Justice, 59 F. Supp. 3d 584, 590-91 (S.D.N.Y. 2014). The Court noted that the government’s 1 2 “assertion on the initial summary judgment motion that segregating non-exempt information in FISC

3 orders would leave only ‘unintelligible sentences and phrases’ was incorrect,” leaving the Court with

4 “little faith in the Government’s segregability determinations.” Id. at 591-92. 5 Given DOJ’s repeated failure to segregate and release readily non-exempt information from 6 FISC opinions in the past, it is likely the agency has done the same here. Absent some justification 7 that every word contained within the Opinion would reveal classified or otherwise exempt 8 9 information, the Six Opinions cannot be withheld in full under Exemptions 1, 3, 7(A), and 7(E). 10 D. In Camera Review of the Six Opinions is Necessary. 11 In conducting its de novo review, FOIA empowers the Court to examine “agency records in

12 camera to determine whether such records or any part thereof shall be withheld.” 5 U.S.C. § 13 552(a)(4)(B). Given the circumstances present here, EFF respectfully submits that in camera review 14 of the Opinion is an appropriate means by which the Court can resolve this case. 15 There is a “greater call for in camera inspection” in “cases that involve a strong public 16 17 interest in disclosure.” Allen v. CIA, 636 F.2d 1287, 1299 (D.C. Cir. 1980). As the D.C. Circuit has 18 explained, in language particularly pertinent here:

19 When citizens request information to ascertain whether a particular agency is properly serving its public function, the agency often deems 20 it in its best interest to stifle or inhibit the probes. It is in these 21 instances that the judiciary plays an important role in reviewing the agency’s withholding of information. But since it is in these instances 22 that the representations of the agency are most likely to be protective and perhaps less than accurate, the need for in camera inspection is 23 greater.

24 Id.; see also Jones v. FBI, 41 F.3d 238, 243 (6th Cir. 1994) (noting in camera inspection

25 warranted where there is a “strong public interest — where the effect of disclosure or exemption 26 clearly extends to the public at large, such as a request which may surface evidence of corruption in 27 an important government function”). ii. i 28 23 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG

Case 4:16-cv-02041-HSG Document 68 Filed 08/23/18 Page 31 of 31

The Six Opinions concern a topic of intense public scrutiny and interest. The scope, legality, 1 2 and propriety of the government’s current national security surveillance practices is a topic of

3 vigorous public debate, both in this country and abroad. In light of this overriding public interest, the

4 need for in camera inspection is particularly acute. 5 Indeed, in two previous cases concerning FISC opinions, the court saw fit to inspect the 6 withheld records in camera. See Order Re: Production of Documents for In Camera Review, Second 7 Order Re: Production of Documents for In Camera Review, EFF v. Dep’t of Justice, No. 11-cv- 8 9 5221-YGR (N.D. Cal. June 13, 2014) (ECF Nos. 85, 88); Minute Order Mar. 25, 2014, EFF v. Dep’t 10 of Justice, No. 12-cv-1441-ABJ (D.D.C.).

11 CONCLUSION

12 This Court should not countenance the government’s ongoing attempts to avoid its statutory 13 transparency obligations. For all the foregoing reasons, EFF respectfully urges the Court to grant its 14 motion for partial summary judgment. 15

16 DATED: August 23, 2018 Respectfully submitted,

17 /s/ Aaron Mackey 18 Aaron Mackey Nathan D. Cardozo 19 ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street 20 San Francisco, CA 94109 Telephone: (415) 436-9333 21 Facsimile: (415) 436-9993

22 Attorneys for Plaintiff ELECTRONIC FRONTIER FOUNDATION 23 24

25

26 27 ii. i 28 24 PLAINTIFF’S CROSS MPSJ AND OPP TO DEFENDANT’S MPSJ Case No. 4:16-cv-02041-HSG