Elec. Frontier Found. v. DOJ, No. 11-05221, 2014 WL 3945646 (N.D. Cal. Aug. 11, 2014) (Rogers, J.)

Elec. Frontier Found. v. DOJ, No. 11-05221, 2014 WL 3945646 (N.D. Cal. Aug. 11, 2014) (Rogers, J.)

Re: Request for opinions or orders of Foreign Intelligence Surveillance Court, names of telecommunication service providers participating in call record collection program, and formal opinion of OLC concerning interaction between disclosure in Patriot Act, as amended, and prohibitions in Census Act

Disposition: Granting in part and denying in part defendant's cross-motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Exemption 1 and 3:  "The Court finds DOJ's showing, and the Court's review of the documents themselves, supports withholding under these exemptions."  "The FISC orders are properly withheld to protect intelligence sources and methods used by the government to gather intelligence data."  "The orders discuss specific techniques authorized by the FISC, the details of the underlying investigations, and details concerning how the government operationally and technically implements the FISC authorized techniques, which the government continues to employ."  The court finds that "[d]isclosure of the documents would reveal intelligence activities or methods described in the FISC orders could allow targets of national security investigations to divine what information was collected when, as well as gaps in surveillance, thus providing a roadmap for evading surveillance."  The court notes that "[h]ere, DOJ relies on two . . . statutes to support withholding: (1) the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403–1(i), which protects intelligence sources and methods from unauthorized disclosure; and (2) Section 6 of the National Security Agency Act of 1959, codified at 50 U.S.C. § 3605, which provides that '[n]othing in this Act or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof....'"
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  Regarding Exemptions 1 and 3, the court finds that "the documents must be withheld in full and contain no reasonably segregable information."
   
• Waiver:  "The Court finds that Plaintiff has not met its burden" to show that waiver occurred because "[n]either of the two supposed 'official acknowledgements' waived the exemptions asserted by DOJ."  The court explains that "the timing of [certain statements at issue] shows that they were not made while [the speakers were] acting in an authorized government capacity" and, therefore, the speakers "could not speak for any agency of the United States at that point."  Moreover, the court finds that the statements at issue "indicat[ed] that the list was hypothetical or, at least, non-exclusive."  The court holds that this "is not a sufficient basis to require that the DOJ specifically identify all telecommunications service providers associated with the program."
   

• Exemption 5, Deliberative Process Privilege:  The court addresses "the withholding of the Census Memorandum, a legal advice memorandum from OLC to the Department of Commerce."  "[T]he Court's review of the evidence, both in the public record and in camera, establishes that the Census Memorandum was cited as legal authority and adopted as the working law of DOJ."  The court explains that "DOJ cited the Census Memorandum in the context of carrying out its duties, and in connection with matters completely unrelated to the OLC's provision of advice to the Department of Commerce."