EFF v. ODNI: N.D.Cal. Grants Preliminary Injunction Requiring ODNI to Turn Over FISA-Related Documents

Electronic Frontier Foundation, Inc. v. Office of the Director of National Intelligence, No. C 07-5278 SI

District Court for the Northern District of California, November 27, 2007
Order

On November 27, the District Court for the Northern District of California granted in part and denied in part a motion by the Electronic Frontier Foundation (EFF) for a preliminary injunction against the Office of the Director of National Intelligence (ODNI) ordering release under the Freedom of Information Act (FOIA) of communications concerning proposed amendments to the Foreign Intelligence Surveillance Act (FISA). The court ordered ODNI to provide an initial release by November 30, to provide a final release of all documents by December 10, and to provide an affidavit with its final release explaining why it withheld any withheld documents.

The court first held that a preliminary injunction may be granted in FOIA cases. It then found that EFF was entitled to a preliminary injunction. The court reasoned that EFF would likely prevail on the merits of its FOIA claim and suffer irreparable injury in the absence of relief; ODNI would not be burdened; and the public interest favored the injunction.

The court noted ODNI’s failure to justify its request to extend its response time from 20 days to 4 months and the irreparable harm to the public that would result from its inability to access information on the pending FISA amendments until after the Congressional vote expected before the end of the year. The court suggested that ODNI’s objections to the burdens imposed by compliance with FOIA should be addressed to Congress rather than the courts.

EFF issued a press release touting the importance of the order, as well as an earlier release explaining its pursuit of the case.
Kim Curtis of the Associated Press calls the order a “minor victory” in EFF’s challenge to the Bush administration’s domestic surveillance program.
Glenn Greenwald of Salon.com considers the order a significant victory for EFF, and argues it will provide the public with vital information concerning extensive lobbying and donations from the telecommunications industry to influence Congress to grant immunity from “past lawbreaking.”

The documents EFF is seeking would reveal communications between ODNI and telecommunications carriers as well as Congress members regarding pending Amendments to FISA. These Amendments would provide legal immunity to carriers who assisted in government surveillance where such conduct otherwise violated state or federal law. The Senate Bill would require the immediate dismissal of both state and federal claims against carriers if the Attorney General certifies that the assistance was provided in connection with certain surveillance activities designed authorized by the president.

EFF claimed a particular interest in the debate over these Amendments, because of its current representation of plaintiffs in Hepting v. AT&T, “a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in domestic surveillance.”

EFF also requested production of a Vaughn index, which would identify withheld documents and explain their non-production. The district court dismissed that request as premature.