Court rules Dept. of Justice must explain withheld documents

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A federal court has ordered the Department of Justice to explain why they have withheld documents about broad Internet surveillance requested by privacy advocates under the Freedom of Information Act.

The decision is the latest development in the two-year court case between DOJ and the Electronic Privacy Information Center. The case began in 2013 when the department did not meet the agreed-upon expedited deadline for a Freedom of Information Act request, EPIC Senior Counsel Alan Butler told FedScoop.

Butler described the DOJ’s response as like a “brick wall.”

The DOJ will now need to review the reports and provide the court with specific reasons why they withheld them or significantly redacted multiple parts of certain documents, or explain how releasing them would harm national security.

“Put another way, the current sworn statements are too general in scope and because the declarations fail to home in on the specific withholdings now at issue, they are manifestly inadequate to assist the Court in determining whether the declarants have made a reasonable assessment …” the District Judge Ketanji Brown Jackson said in her ruling.

While the DOJ released a large amount documents during the back-and-forth court case, EPIC is still trying to get 25 semiannual reports to Congress containing legal opinions, descriptions and discussions, alongside missing printouts from a briefing, said Butler, EPIC’s lead counsel for the case. 

DOJ spokesman Marc Raimondi declined to comment on the case.

EPIC sent the FOIA request on Oct. 3, 2013, to obtain the last 10 years of semiannual reports related to pen registers/trap and trace devices that collect metadata about Internet traffic or the numbers and duration of incoming or outgoing calls. DOJ granted them an expedited process but still did not file the request in 40 days, leading EPIC to file a complaint and eventually motion for a preliminary injunction Dec. 6, that year.

The DOJ has until March 11 to file the updated documents and explain why the documents they did not release needed to be withheld for national security, according to the ruling.

“The court’s decision marks a huge step forward with dealing with classified materials,” Butler said. “Most would tell you trying to get them would be like running towards a brick wall, but this decision is a huge win.”

The decision comes, Butler said, during a time when there is been more governmental disclosure, especially after the massive National Security Agency leak in 2013. In recent time, there have been more FOIA requests as well as less secrecy coming from agencies in general, he said.

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