D.C. Circuit Greenlights EPIC Appeal Concerning Predictive Policing, Executive Privilege

The D.C. Circuit has rejected an attempt by the Department of Justice to cut short EPIC’s appeal in EPIC v. DOJ, a FOIA case concerning predictive policing, algorithmic transparency, and executive privilege. The appeal will now be argued before a three-judge panel of the D.C. Circuit. EPIC’s case calls for the disclosure of a “Predictive Analytics Report” drafted by the DOJ for the White House. A lower court backed the DOJ last year when the agency asserted the “presidential communications privilege” over the report. But neither the D.C. Circuit nor the Supreme Court has ever permitted a federal agency to unilaterally invoke that privilege in a FOIA case. EPIC recently filed a FOIA suit for the release of the Mueller Report, which President Trump may attempt to withhold from the public using executive privilege. EPIC has pursued numerous FOIA cases concerning algorithmic transparency, passenger risk assessment, "future crime" prediction, and proprietary forensic analysis.