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American Civil Liberties Union of Northern California v. Dep't of Justice

March 11, 2005


The opinion of the court was delivered by: Phyllis J. Hamilton United States District Judge


The parties' cross-motions for summary judgment came on for hearing on March 2, 2005. Plaintiff appeared by its counsel Amitai Schwartz and Elizabeth Letcher, and defendants appeared by their counsel Marcia Berman. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendants' motion and DENIES plaintiff's motion as follows.


This is an action brought under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), for injunctive and declaratory relief. Plaintiff American Civil Liberties Union of Northern California ("ACLU-NC") seeks an order requiring expedited processing and release of agency records by defendant United States Department of Justice ("DOJ") and defendant Federal Bureau of Investigation ("FBI"). The parties seek summary judgment on the question whether ACLU-NC is entitled to expedited handling of its FOIA request.


Congress enacted FOIA "to facilitate public access to Government documents." U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991). Members of the public may request information and copies of public records from agencies of the Executive Branch of the United States government pursuant to the FOIA. 5 U.S.C. § 552. All federal agencies are required to disclose records upon receiving a written request for them. Id. § 552(a).*fn1

Agencies ordinarily process requests for records and information on a "first-in, first-out" basis. See, e.g., 28 C.F.R. § 16.5(a) (DOJ components*fn2 generally shall respond to requests according to their order of receipt). Congress amended the FOIA in 1996 to provide for the "expedited processing" of certain categories of requests. See Electronic Freedom of Information Amendments of 1996, Pub. L. 104-231, § 8, codified at 5 U.S.C. § 552(a)(6)(E) ("EFOIA"). If a request for expedited processing is granted, the request moves to the front of the processing queue, ahead of previously filed requests.

As part of the EFOIA, Congress directed each agency to promulgate regulations providing for the expedited processing of requests for records, in two situations -- when the person requesting the records "demonstrates a compelling need," and "in other cases determined by the agency." 5 U.S.C. § 552(a)(6)(E)(i)(I), (II). The EFOIA defines "compelling need" as either "that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual," or, "with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity." Id. § 552(a)(6)(E)(v)(I), (II). Requests for expedited processing which an agency grants are to be processed "as soon as practicable." Id. § 552(a)(6)(E)(iii).

The regulations promulgated by the DOJ for administering the FOIA are published at 28 C.F.R. § 16, Subpart A. Under those regulations, requests will be taken out of order and given expedited treatment whenever it is determined that they involve

(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;

(iii) The loss of substantial due process rights; or

(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.

28 C.F.R. at § 16.5(d)(1)(i)-(iv) (emphasis added). Of these four grounds, the ones set forth in subsections (i) and (ii) implement the statutory "urgency to inform" standard under 5 U.S.C. § 552(a)(6)(E)(v)(I), (II). Those set forth in subsections (iii) and (iv) define the "other cases determined by the agency" that the DOJ has determined qualify for expedited processing. See 5 U.S.C. § 552(a)(6)(E)(i)(II).

The only opinion issued to date by a Circuit Court of Appeals interpreting these "expedited processing" provisions is the decision in Al-Fayed v. Central Intelligence Agency, 254 F.3d 300 (D.C. Cir. 2001). The D.C. Circuit noted that the legislative history of the EFOIA indicates Congress' intent that the rule allowing expedited processing be "narrowly applied." Al-Fayed, 254 F.3d at 310 (quoting EFOIA Amendments of 1996, H.R. Rep. No. 104-795, at 26 (1996), and stating that Congress' rationale was clear, in view of statement in House Report that "given the finite resources available for filling FOIA requests, unduly generous application of the expedited processing procedure would unfairly disadvantage other requesters who do not qualify for its treatment."). The court also held that the requester bears the burden of showing that it is appropriate that the request be expedited. Id. at 305 n.4 (citing 5 U.S.C. § 552(a)(6)(E)(i)(I); H.R. Rep. No. 104-795, at 25).


ACLU-NC is an affiliate of the American Civil Liberties Union, described in the complaint as "a national organization that works to protect the civil liberties of all people, including immigrants to the United States." Cplt. ¶ 7. ACLU-NC primarily serves the population of Northern California. Id. It is a "non-profit, non-partisan membership organization [that] publishes newsletters, provides news briefings, publishes and disseminates right-to-know documents, and other materials that are distributed to the public." Id. ¶ 8. It also disseminates information through its website and its monthly newsletter. Id.

ACLU-NC represents that in the summer of 2004, it received reports that the FBI, as part of its effort to combat terrorism, had been interrogating numerous individuals throughout California solely because they were Muslims or were persons of Middle Eastern descent. ACLU-NC asserts that numerous news articles stated that the FBI was questioning these individuals about their association with other people and groups, about their political views on the war in Iraq and on other issues related to the Middle East, and about what mosques people attended.

On August 20, 2004, ACLU-NC submitted a FOIA request to multiple DOJ components -- including FBI Headquarters in Washington D.C., various FBI Field Offices and Resident Agencies in Northern California, the Executive Office for United States Attorneys ("EOUSA"), the United States Attorneys for the Northern and Eastern Districts of California, and the Director of Public Affairs for DOJ.

The request states that the National Lawyers' Guild ("NLG") has "[r]ecently . . . been receiving telephone calls from individuals living throughout Northern California, who have been interrogated by the Federal Bureau of Investigation (FBI) for no apparent reason other than having been born in and/or traveled to the Middle East." The request states further that these random interviews or interrogations "raise the concern that the FBI and the Joint Terrorism Task Forces operating in Northern California are infringing upon the civil rights and civil liberties of immigrants, U.S. Citizens and organizations by interrogating them without any valid basis, rationale, or individualized suspicion for doing so."

The FOIA request contains four numbered requests, each seeking a broad range of records and information.

Request No. 1 seeks all records relating to any agreement between the FBI or Department of Homeland Security and the State of California or any counties or cities in Northern California,*fn3 to form a Joint Terrorism Task Force ("JTTF").

Request No. 2 seeks all records created by or transmitted by or between the FBI, any JTTF in Northern California, any Sheriff's or Police Department in Northern California, the California Anti-Terrorism Information Center, the California Justice Department, or the California Highway Patrol Anti-Terrorism Unit relating to

(a) the monitoring or questioning of individuals in Northern California on the basis of national origin, ethnic background, religious affiliation, organizational membership, political affiliation, or participation in protest activities;

(b) the factors used to decide if a person is to be the target of such monitoring or questioning;

(c) the types of information law enforcement agents are instructed to obtain about individuals or organizations that are subject to such monitoring or questioning;

(d) the policies or procedures addressing the sharing of information obtained as a result of such monitoring or questioning;

(e) the way in which the information described in (c) has been or might be used;

(f) any procedures for cross-referencing the information described in (c) with information in other databases or information about other individuals or organizations;

(g) the policies and procedures regarding destruction of information received through monitoring or questioning of such individuals or organizations;

(h) the policies and procedures that protect the privacy of persons who are observed or contacted during such monitoring or questioning;

(i) California's constitutional right to privacy and the manual issued by the California Attorney General entitled Criminal ...

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