Surveillance Records Demand Kept in Knots

(CN) - Questionable delays do not justify immediate access to U.S. records on government surveillance of email and Internet data, a federal judge ruled Tuesday.

In the wake of revelations that the Justice Department's national security division launched a surveillance program using "pen registers" and "trap and trace" devices to collect email and internet data, the watchdog group Electronic Privacy Information Center filed Freedom of Information requests with the agency for full reports made to both the House and Senate intelligence committees.

The Justice Department agreed to expedite the Oct. 3, 2013, FOIA request, but EPIC said it still had not received a response or a single record 42 days later.

It filed suit in December to compel immediate production of the requested records.

EPIC argued that, because the Justice Department did not respond within FOIA's 20-day deadline for regular requests, the department had not expedited production of the records as agreed. For its part, DOJ lawyers argued that it had moved EPIC's request to the fast lane and was processing the complicated - and largely classified - request as quickly as possible.

U.S. District Judge Ketanji Brown Jackson noted Tuesday that nothing in the Freedom of Information Act mandates that a missed deadline requires an agency to turn over all requested documents without further processing. In fact, D.C. Circuit case law in 2013's Citizens for Responsibility and Ethics in Washington (CREW) v. Federal Election Commission established expectations for both parties at the point in the dispute.

"CREW substantially decreases the likelihood that EPIC will prevail on the merits of its argument that the NSD's failure to adhere to the 20-day deadline violates FOIA in a manner that entitles EPIC to a court order granting it immediate access to the requested records," Jackson wrote. "This is because, under CREW, an agency's response to a FOIA request generally involves two steps, only one of which implicates the 20-day statutory timeframe. First, an agency will gather and review documents and make a 'determination,' which is a decision regarding the scope of the documents the agency intends to produce and withhold, and the reasons for withholding any documents. By statute, the agency is required to communicate this determination to the requester (and mention the right to appeal) within 20 days of receipt of the request. Then, after the determination has been made and communicated, the agency proceeds to the second step, which is to process the responsive documents and produce them to the requester 'promptly.' CREW also clearly recognizes that the 20-day determination deadline is not always practicable, and it explains what happens when that deadline is not met: in such a circumstance, the FOIA requester is deemed to have exhausted his administrative remedies and can proceed immediately to federal court, after which the agency 'may continue to process the request,' but will do so under the court's supervision."

EPIC's argument of irreparable harm - that without immediate production of documents its right to expedition under FOIA will be lost forever - also failed to impress the court.

"EPIC's own subjective view of what qualifies as 'timely' processing is not, and cannot be, the standard that governs this court's evaluation of irreparable harm, and EPIC offers nothing more than a bald assertion that DOJ is obviously not processing its FOIA request in a timely fashion," Jackson wrote. "By contrast, DOJ has submitted uncontroverted evidence that the agency has, in fact, expedited EPIC's FOIA request, even though it will not be able to complete processing the request in 20 days. This evidence substantially undermines EPIC's 'timeliness' argument. In other words, even assuming that the loss of a 'right to expedition' can properly be characterized as irreparable harm, in light of DOJ's uncontested representations, EPIC has failed to establish that its right to expedition has been, or will be, extinguished absent a preliminary injunction."

The judge added that most of the requested reports are classified anyway, which means they will fall under any number of FOIA exemptions and will not be released at all. They will add nothing to EPIC's education of the public regarding government surveillance.

"EPIC's contention that it will be irreparably harmed unless it receives the requested records quickly so that the public can participate fully in the ongoing debate is not only unproven, it is also fundamentally flawed because it ignores the well-established statutory FOIA process, which permits government agencies to withhold certain requested documents and to engage in subsequent litigation over them, without regard to the resulting production delay," Jackson wrote.

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