Title: Order Granting Defendants' Motion for Leave to File Declarations in camera and ex parte

Document Date: 2014-07-29

Text: Case 1:12-cv-00127-BJR Document 39 Filed 07/29/14 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 12-00127 (BJR)
MEMORANDUM ORDER

Before the Court is Defendants’ Motion for Leave to File Ex Parte and In Camera
Exhibits Concerning Withholding of Investigative Records.

In June 2011, Plaintiff Electronic Privacy Information Center (“EPIC”) sent Freedom of
Information Act (“FOIA”) requests to Defendants—the Criminal Division of the Department of
Justice, the Federal Bureau of Investigation, and the National Security Division of the
Department of Justice. Compl. ^ 30, 31, 32. EPIC requested records relating to the
Government’s surveillance and investigation of Wikileaks supporters. Id. ^ 33. In response, the
Criminal Division and the National Security Division declined to disclose any documents, citing
various FOIA exemptions, and the Federal Bureau of Investigations told EPIC that a search of its
database did not reveal any responsive main file records. Id. ^ 42, 45, 49. EPIC then filed
administrative appeals with each Defendant. Id. ^ 52, 55, 58. Defendants failed to respond to
EPIC’s administration appeals within twenty days. Id. ^ 54, 57, 63. This suit followed.

Defendants filed a Motion for Summary Judgment in January 2013. In their motion for
summary judgment, Defendants claim the requested documents are protected by Exemptions 1,

ELECTRONIC PRIVACY
INFORMATION CENTER,

Plaintiff,

v.

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

Defendant.

Case 1:12-cv-00127-BJR Document 39 Filed 07/29/14 Page 2 of 3

3, 5, 6, 7(A), 7(C), 7(D), 7(E), and 7(F).1 Attached to their motion for summary judgment,
Defendants submitted three declarations on the public record, which do not identify the exact
statute relied on for Exemption 3 protection and withhold additional information. Defendants
also filed three ex parte declarations, of which they seek in camera review. Defendants contend
that in camera review of these declarations is proper because public disclosure of the
declarations would expose records of an ongoing investigation and thereby jeopardize interests
protected by FOIA. Mot. at 2. Plaintiff argues that the in camera review that Defendants seek
would allow them to withhold identification of the exact statute they rely on for Exemption 3
protection. Pl. Opp’n at 5. Additionally, Plaintiff claims that Defendants’ motion lacks adequate
support and is only justified by vague, boilerplate statements. Id. at 9.

It is well-established that courts under this circumstance may examine ex parte, in
camera declarations. E.g., Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984)
(noting that the D.C. Circuit “ha[s] permitted such in camera affidavits in national security cases,
and has stated that the use of such affidavits is at the discretion of the trial court.” (internal
citation omitted)); Hayden v. Nat’lSec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1385 (D.C. Cir.
1979) (same); Am. Civil Liberties Union of Mich., 734 F.3d 460, 469-72 (6th Cir. 2013)
(explaining the FBI’s standard practice of offering an in camera, ex parte declaration when a
plaintiff challenges the possible use of an exclusion, as well as citing cases that approve of such
an approach); Light v. U.S. Dep’t of Justice, 968 F. Supp. 2d 11, 30 (D.D.C. 2013) (relying on an
ex parte, in camera declaration to resolve the plaintiff’s claim that the defendants inappropriately
used an exclusion); Mobley v. CIA, 924 F. Supp. 2d 24, 72 (D.D.C. 2013) (same).

1 Exemption 3 allows the withholding of information “specifically exempted from disclosure by
statute.” 5 U.S.C. § 552 (b)(3).

2

Case 1:12-cv-00127-BJR Document 39 Filed 07/29/14 Page 3 of 3

Before resorting to in camera review, though, the Court should “require the agency to
create as full of a public record as possible, concerning the nature of the documents and the
justification for nondisclosure,” Hayden, 608 F.2d at 1383, because initially requiring public
disclosure “enhance[s] the adversary process,” id. at 1385. Still, when “some of the interests of
the adversary process are outweighed by the nation’s legitimate interest in secrecy,” the Court
may inspect documents in camera. Id.

Here, Defendants have filed public versions of the challenged declarations, “creat[ing] as
full of a public record as possible.” Hayden, 608 F.2d at 1383. Moreover, Defendants explain
that further public disclosure of the declarations would expose the very information the agencies
seek to protect. In balancing the interests of the adversary process, which this Court weighs
heavily, with the nation’s legitimate interest in secrecy, the Court concludes that Defendants
should be granted leave to file the declarations ex parte and in camera.

NOW THEREFORE, the Court GRANTS Defendants’ Motion for Leave to File Ex
Parte and In Camera Exhibits.

DATED this 29th day of July, 2014.



Os .

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

3

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