Title: Plaintiff's Opposition To Defendants' Sealed Motion For Leave To File Document Under Seal

Document Date: 2014-05-09

Text: Case 1:12-cv-00127-BJR Document 35 Filed 05/09/14 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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) No: 12-cv-00127 (BJR)

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ SEALED MOTION FOR
LEAVE TO FILE DOCUMENT UNDER SEAL

INTRODUCTION

On March 11, 2014, this Court issued a Minute Order directing defendants to
“update its position regarding Plaintiff's FOIA request, particularly with respect to the
government's invocation of exemption 7(A).” Defendants filed a Supplemental Brief in
Further Support of Defendants’ Motion for Summary Judgment on April 25, 2014. Dkt.
33. Also on April 25, Defendant filed a Sealed Motion For Leave To File Document
Under Seal. Dkt. 34. Plaintiff Electronic Privacy Information Center (“EPIC”) hereby
opposes Defendants Motion Under Seal.

First, the government has made no attempt to show that it satisfies this Court’s
standard for ex parte, in camera review of the declaration it seeks to file. Instead, the
government submits a cursory description of the declaration and a conclusory legal
analysis. Second, the government is once again attempting to litigate this case without the
full burden of the adversarial process. The Court should deny defendant’s motion.

ELECTRONIC PRIVACY
INFORMATION CENTER,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION, et al.,

Defendants.

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Case 1:12-cv-00127-BJR Document 35 Filed 05/09/14 Page 2 of 7

PROCEDURAL BACKGROUND

This lawsuit arises from three Freedom of Information Act requests in which
EPIC asked Defendants for information about the government’s identification and
surveillance of individuals who had expressed interest in WikiLeaks, an Internet-based
media organization. Compl., Dkt. 1, ^ 30-32. On November 1, 2012, the day the
government’s Vaughn index was due, EPIC received three documents summarizing the
categories of information withheld by the three government agencies. Pl. Opp. to Mot.
Leave, Dkt. 13, FBI Vaughn, Ex. 1; NSD Vaughn, Ex. 2; CRM Vaughn, Ex. 3. Although
the government characterized these summaries as “ Vaughn indices,” these documents
failed to meet the well-established threshold for a sufficient Vaughn filing. Instead, the
government submitted categorical Vaughn indices that did not justify the withholding on
a document-by-document basis but instead listed generic categories of documents. Id.

Before moving for summary judgment on January 31, 2013, the government
moved for leave to file three declarations ex parte and in camera in connection with its
Motion for Summary Judgment. Defs.’ Mot. Leave, Dkt. 10; Defs.’ Mot. Summ. J., Dkt.
12. These declarations were completed by individuals at each of the Department of
Justice components: the Criminal Division, the National Security Division, and the
Federal Bureau of Investigation. Id. Although public versions of each declaration were
also filed, the government explained that the secret declarations were necessary to
properly evaluate its arguments under Exemption 7(A), which is the primary basis for its
withholding. Defs.’ Mot. Summ. J., Dkt. 12, at 8. The government also stated that the ex
parte, in camera filings were necessary to support its withholdings under Exemptions 3,
6, 7(C), and 7(D). Id. at 4. In its Motion for Summary Judgment, the government also

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made the puzzling admission that “[e]ach component has withheld information pursuant
to Exemption 3, but cannot publicly identify the statute(s) that require(s) nondisclosure or
provide further information about the withheld information.” Id. at 21.

On February 18, 2013, EPIC filed its Opposition to Defendants’ Motion for Leave
to File Ex Parte and In Camera Exhibits. Pl. Opp. to Mot. Leave, Dkt. 13. On March 4,
EPIC moved for the court to review the underlying FOIA documents in camera. Pl.’s
Mot. for In Cam. Rev., Dkt. 17. EPIC highlighted the D.C. Circuit’s ruling that where the
government’s affidavits “merely state in conclusory terms that documents are
exempt from disclosure, an in camera review is necessary.” Id. ; Quinon v. Fed. Bureau
of Investigation, 86 F.3d 1222, 1229 (D.C. Cir. 1996) (emphasis added). The Parties
completed briefing their Motions for Summary Judgment on April 24, 2013.

Following this court’s Minute Order dated March 11, 2014, the government filed
a Supplemental Motion for Summary Judgment and a Sealed Motion to File a Document
Under Seal (“Motion for Leave”). Defs.’ Supp. Mot. Summ. J., Dkt. 33; Defs.’ Sealed
Mot. to File Doc. Under Seal, Dkt. 34. This Opposition responds to the government’s
Sealed Motion.

ARGUMENT

EPIC opposes the government’s April 25, 2014 Motion for Leave to File a
Document Under Seal for the same reasons that EPIC opposed the government’s January
31, 2013 Motion for Leave to File a Document Under Seal. First, the government has not
shown the Court that it has met this Circuit’s standard for filing ex parte and in camera
evidence. Second, by depriving EPIC of any responsive documents, a true Vaughn index,
and a full record of its declarations, the government exacerbates the inherent

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informational asymmetry that characterizes FOIA litigation and continues to thwart the
adversarial process.

I. The Government Has Made No Attempt to Address this Court’s Test for Ex Parte
and In Camera Submission

As EPIC previously stated in its Opposition to Plaintiff’s earlier Motion for Leave
to File Under Seal, the standard for accepting ex parte, in camera declarations in this
Circuit is one of strict necessity. Arieff v. U.S. Dep’t of the Navy, 712 F.2d 1462, 1470-71
(D.C. Cir. 1983). See also Yeager v. DEA, 678 F.2d 315, 324 (D.C. Cir. 1982) (“Because
such submissions do not permit the plaintiff an opportunity to respond, these procedures
should be employed only where absolutely necessary.”) (quotation and citation omitted);
Lykins v. DOJ, 725 F.2d 1455, 1465 (D.C. Cir. 1984) (“We have held that a trial court
should not use in camera affidavits unless necessary . . . .”). If a court ultimately resorts
to examining declarations ex parte and in camera, it must ensure that “such use is
justified to the greatest extent possible on the public record.” Id. As EPIC noted, “This is
particularly true where, as here, the submissions sought to be accorded in camera
treatment constitute the heart of the agency’s Vaughn index.” Yeager, 678 F.2d at 324.

However, the government has made no attempt in its Motion to account for this
Circuit’s ex parte and in camera submission standard. The government asserts that it will
file “public declarations, which provide all information that can be disclosed on the
public record,” but the government also claims that the declaration that it seeks leave to
file ex parte contains “information that cannot be disclosed publicly without causing
serious harm to that investigation.” Defs.’ Supp. Mot. Leave, Dkt. 34, at 1-2. These
“conclusory, boilerplate statements” once again fail to justify the introduction of secret
evidence in this case. Gray v. U.S. Army Criminal Investigation Command, 742 F. Supp.

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2d 68, 75 (D.D.C. 2010). An agency is not permitted to rely on claims if they “are
conclusory, merely reciting statutory standards, or if they are too vague or sweeping.”
Hayden v. National Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979). The
government’s bare assertion that disclosure of the supplemental declaration would cause
“serious harm” to an investigation does not adequately explain the basis for the
government’s position. And in fact, the D.C. Circuit has previously found that “the
District Court’s failure to hold the government to the accepted standards for submission
of in camera affidavits made it impossible for the adversary system to function
effectively in the District Court.” Yeager, 678 F.2d at 324. The government cannot
assume that the court will take it at its word - instead, the government must show that it
has met the D.C. Circuit’s standards for ex parte, in camera submission.

II. The Court Should Exclude the Rest of the Government’s Secret Declarations

In FOIA litigation, the plaintiff operates at an informational disadvantage that
frustrates the adversarial proceeding. The party challenging the application of statutory
exemptions does not have access to the records in dispute and therefore does not have the
same ability as does the government agency withholding the records to make
representations to this Court as to the actual content of the documents. Typically, the
Vaughn index helps restore a level of parity between the parties. “The purpose of a
Vaughn index is to permit adequate adversary testing of the agency's claimed right to an
exemption, and those who contest denials of FOIA requests—who are, necessarily, at a
disadvantage because they have not seen the withheld documents[.]” Citizens for
Responsibility & Ethics in Washington v. DOJ, 840 F. Supp. 2d 226, 230 (D.D.C. 2012).
Where a Vaughn index cannot fully justify the agency’s claimed exemptions, affidavits

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become vital to allow the plaintiff access to the facts of the case. “Affidavits submitted
by a governmental agency in justification for its exemption claims must therefore strive
to correct, however, imperfectly, the asymmetrical distribution of knowledge that
characterizes FOIA litigation.” King v. U.S. Dep't of Justice, 830 F.2d 210, 218 (D.C. Cir.
1987); see also Judicial Watch, Inc. v. USPS, 297 F. Supp. 2d 252, 269 (D.D.C. 2004)
(describing the importance of agency affidavits given FOIA litigation’s “imbalance in
access to facts.”) In this case, however, the government still has not produced a true
Vaughn index. And instead of providing detailed affidavits to “strive to correct the
asymmetrical distribution of knowledge that characterizes FOIA litigation,” the
government has asked the court, once again, for leave to file an ex parte affidavit. King,
830 F.2d at 208.

Filing an affidavit under seal in a FOIA matter frustrates the adversarial process
and is directly contrary to the purposes of the Act; filing a legal argument under seal in
support of such a motion is beyond the pale. Information asymmetry in litigation deprives
both the plaintiff and this Court of the benefits of the full adversarial process. For this
reason, the acceptance of ex parte, in camera declarations is “a practice out of accord
with normal usage under our common law tradition, in which the judge functions as the
impartial arbiter of a dispute fully argued by both parties before him.” Arieff, 712 F.2d at
1471. “Requiring agencies to provide public explanations” for withheld materials “allows
for adversarial testing of the agencies’ claims, which helps focus the court’s attention on
the most important issues in the litigation and may reveal not otherwise apparent flaws in
the agencies' reasoning.” Roth v. DOJ, 642 F.3d 1161, 1185 (D.C. Cir. 2011). The D.C.
Circuit has therefore been rightfully “troubled” by “[t]he legitimacy of accepting in

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camera affidavits.” Lykins, 725 F.2d at 1465. The harm that EPIC originally identified in
Plaintiff’s Opposition to Defendants Motion for Leave persists: where the government
has filed a categorical Vaughn rather than a true Vaughn, provided no responsive records
for in camera review, and now seeks to keep secret portions of its declarations, the harm
to the adversarial process is greater here than consideration of ex parte, in camera
declarations alone would indicate.

CONCLUSION

For the foregoing reasons, EPIC respectfully requests that this Court release
Defendants’ Sealed Motion to File Documents Under Seal and reject all other portions of
the ex parte, in camera declarations.

Respectfully submitted,

By: _/s/_________

Marc Rotenberg (DC Bar # 422825)
Ginger P. McCall (DC Bar # 1001104)
Julia Horwitz (DC Bar # 1018561)
ELECTRONIC PRIVACY
INFORMATION CENTER
1718 Connecticut Avenue, N.W.

Suite 200

Washington, D.C. 20009
(202) 483-1140 (telephone)

(202) 483-1248 (facsimile)

Dated: May 9, 2014

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