U.S. Fish & Wildlife Service v. Sierra Club

Whether Exemption 5 of the Freedom of Information Act allows an agency to withhold documents reflecting the agency's position on another agency's proposed rule when the documents are never formally finalized and the proposed rule is later revised.
  • EPIC Urges U.S. Supreme Court to Recognize Narrow Scope of FOIA Exemption for Deliberative Documents : In an amicus brief, EPIC has urged the Supreme Court to cabin agency use of the deliberative process privilege to withhold documents from FOIA requesters. The case, U.S. Fish & Wildlife Service v. Sierra Club, concerns opinions from two federal agencies about a proposed EPA rule. Parts of the agencies’ opinions and recommendations were transmitted to the EPA, and the EPA revised its rule based on this information. Nevertheless, the agencies claim that the documents are deliberative and refused to disclose them under the FOIA. EPIC’s brief argues that “agencies have taken an unjustifiably broad view of the deliberative process privilege, often improperly withholding documents that are clearly not deliberative.” EPIC has many years of experience litigating FOIA cases, and provided the Court with examples where agencies have taken an overbroad view of the privilege, such as EPIC v. DOJ (Predictive Policing Report) and EPIC v. DOJ (Warrantless Wiretapping Memoranda). EPIC regularly litigates FOIA cases and files amicus briefs on open government issues. (Aug. 3, 2020)
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  • EPIC Seeks Documents About ICE's Use of Clearview, Other Facial Recognition Services » (Oct. 26, 2020)
    EPIC filed a Freedom of Information Act lawsuit today in the U.S. District Court for the District of Columbia. EPIC challenged Immigration and Customs Enforcement's failure to respond to two Freedom of Information Act requests. The first request sought information on ICE's use of Clearview AI's facial recognition technology. The second request focused on the agency's broader use of facial recognition services and requested commercial contracts, training materials, audits, and agreements with other law enforcement agencies concerning the use of facial recognition services. EPIC previously obtained documents in a FOIA lawsuit against CBP pertaining to CBP's use of facial recognition at airports. EPIC currently has a FOIA lawsuit against the State Department to obtain the agreements the agency has with other entities to access its massive facial recognition database.
  • GAO Report: CBP Needs to Address Privacy Issues with Facial Recognition Deployment » (Sep. 3, 2020)
    A report by the Government Accountability Office found that Customs and Border Protection needs to address privacy issues with the agency's deployment of facial recognition technology at ports of entry. CBP currently deploys facial recognition at 27 airports as part of their Biometric Entry-Exit Program. The GAO found that CBP has not provided adequate privacy notices or information on opting out of facial recognition to the public. Additionally, the agency has failed to implement a plan to audit privacy compliance by airline partners involved in the program. EPIC has previously explained to Congress and the CBP that its Biometric Entry-Exit program unfairly burdens travelers exercising their rights to opt-out of facial recognition. EPIC has called on Congress to suspend facial recognition at airports and earlier this year urged the Privacy and Civil Liberties Oversight Board to recommend the suspension of face surveillance systems across the federal government.
  • Documents Obtained by EPIC Reveal DHS’s Slow Response to Election Cybersecurity Threats, Underscore Risks Posed by New Voting Technologies » (Aug. 19, 2020)
    EPIC has obtained additional documents related to federal efforts to respond to election cybersecurity threats in its suit against the Department of Homeland Security. The documents include summaries of: the DHS's contacts with election officials, state reports of election security incidents going back to 2016, meeting minutes from the DHS Election Task Force in 2017, and a September 2016 Election Infrastructure Cyber Risk Characterization Report. The incident logs reveal difficulties contacting campaign officials in the lead up to the 2016 Election and concern voiced within the agency about "unbalanced" outreach. And DHS contacts with state election officials were somewhat limited as some were wary that the critical infrastructure designation "would at a later time lead to regulation on states." In the September 2016 Election Infrastructure Cyber Risk Characterization Report, the DHS Office of Cyber and Infrastructure Analysis found that compromises in voter registration databases resulted in the potential release of personally identifiable information but not the modification of the underlying records. The DHS determined that exposure of this information could undermine public confidence in election systems. The DHS also counseled strongly against untested voting technologies, finding that the "introduction of new technologies in the voting system will increase vulnerabilities to the election system in the future," particularly the implementation of internet-connected voting systems. The case is EPIC v. DHS, 17-2047 (D.D.C.).
  • EPIC Obtains Records About Texas's Use of Aerial Surveillance » (Aug. 10, 2020)
    Through a Public Information Act request to the Texas Department of Public Safety, EPIC obtained records about the department's use of two Pilatus surveillance planes, including videos recorded during the George Floyd protests. Reports have indicated that these planes, purchased by the state for border operations, were used to surveil cities hundreds of miles from the border. EPIC obtained flight logs from January 1, 2018 to June 15, 2020, plane technical specifications and the department's video retention policy. The flight logs revealed that the surveillance planes flew an average of one flight per day between May 25 to June 15, 2020, with a total of 103 hours of total flight time. In over ninety percent of these flights, the planes recorded no video. The planes reportedly cost an average of $474 an hour to fly, and the Texas DPS spent roughly $49,000 to record three videos over the three-week span. The Texas DPS withheld three videos recorded between May 25 to June 15, 2020, during the height of the George Floyd protests, despite its video retention policy stating that "all retained video copies...will be subject to open records requests." EPIC has long highlighted the privacy and civil liberties implications of aerial surveillance technology and has called on Congress to "establish drone privacy safeguards that limit the risk of public surveillance."
  • White House Tells EPIC to Delete COVID-19 Records, EPIC Declines » (Jul. 23, 2020)
    In an unusual development, the White House directed EPIC this week to delete a set of records that EPIC recently obtained from the Office of Science & Technology Policy—a request which EPIC declined. On Tuesday, EPIC published hundreds of records about the White House’s response to the COVID-19 pandemic and proposals to use location data for public health surveillance (1, 2, 3, 4). Hours later, a White House attorney sent EPIC a letter “order[ing]” EPIC “to immediately cease using and disclosing" one set of records and to “destroy all electronics copies.” The letter stated that OSTP had "inadvertently and erroneously" provided EPIC with an unredacted copy of the records. Although EPIC voluntarily decided to redact personal contact information contained in the documents, EPIC informed the OSTP that it would still make the records available to the public. Under the Freedom of Information Act, a federal agency is not entitled to “claw back” a record that it discloses to a requester. EPIC has filed numerous FOIA requests concerning the federal government’s COVID-19 response and has compiled a resource page about privacy and the pandemic.
  • EPIC Seeks Release of Records About Election Cybersecurity » (Jun. 26, 2020)
    EPIC has filed a cross motion for summary judgement in EPIC v. DHS seeking records about the agency's assessment of election vulnerabilities in 2016 and 2018. EPIC filed the Freedom of Information Act lawsuit against the Department of Homeland Security after the agency designated election systems as "critical infrastructure" in 2017. The agency has released hundreds of pages of records to EPIC about the agency's role in election cybersecurity, but continues to withhold four categories of records including: (1) documents concerning contacts between DHS and state election officials, (2) Election Security Task Force meeting minutes, (3) the agency's assessment of cybersecurity risks to election infrastructure in September 2016, and (4) incident reports concerning vulnerabilities to election systems. EPIC explained that “[t]here is a profound and urgent public interest in the release of [these] records" because it "is necessary for the public to evaluate DHS's response to past incidents, to assess future threats to election systems, and to ensure accountability of the federal agency with the legal authority to safeguard our election systems." With the 2020 presidential election mere months away, it is critical that the public and Congress have access to these records so they can assess the effectiveness of the agency's election cybersecurity program and what steps the agency has taken to protect our democratic institutions. The case is EPIC v. DHS, No. 17-2047 (D.D.C.).
  • EPIC Settles ICE Lawsuit About Technology Used for Warrantless Searches of Mobile Devices » (Jun. 24, 2020)
    EPIC has settled a Freedom of Information Act lawsuit against Immigration and Customs Enforcement. EPIC sought records about the agency's use of mobile forensic technology used to conduct warrantless searches of mobile devices. EPIC obtained ICE contracts with Cellebrite and documents showing that Cellebrite's mobile forensic technology can bypass passcodes to extract email, voicemails, video, audio, photos, web browsing activity, and historical location data. A slide entitled "Legal Considerations" explicitly cited the U.S. v. Riley case, which held in an unanimous decision that police generally require a warrant to search cell phones. EPIC's amicus brief in that case, which was joined by twenty-four legal scholars and technical experts from the EPIC Advisory Board, was cited twice in the Court's opinion.
  • EPIC, Coalition to Congress: Stop funding Surveillance Tech Aimed at Peaceful Protesters » (Jun. 17, 2020)
    Today, EPIC and a group of over 100 privacy, civil rights, and civil liberties organizations urged Congress to halt funding of surveillance technology recently used against peaceful protesters and disproportionately aimed at communities of color. The group stated the need "to address the unconstitutional and dangerous use of surveillance by state, local and federal police officers against demonstrators protesting the murder of George Floyd and so many others perpetuated by systemic police brutality." In response to reports that the government conducted surveillance of peaceful protesters, EPIC filed a series of Freedom of Information Act requests directed at the FBI the DEA and CBP. Earlier this year, EPIC filed similar FOIA requests with several government agencies after it was revealed that the agencies were using Clearview AI, the controversial facial recognition company.
  • EPIC Obtains North Dakota Contact Tracing App Contract; App Goes Against Privacy Policy and Sends Data to Third Parties » (May. 26, 2020)
    Through a government records request EPIC has obtained the contract between North Dakota and ProudCrowd, LLC for the Care19 contact tracing app launched in response to the COVID-19 pandemic. The one-year software license agreement between ProudCrowd and North Dakota provides the state use of the contact tracing app and use of server space. According to the state, the Care19 app generates a random ID number for each user when it is tracking users' movements. North Dakota's privacy policy states that the location data is kept private (not sent to third parties) and stored securely on ProudCrowd servers. The state has not explained why it would store private health data on a storage system not controlled by the government. But a recent report indicates that the Care19 app sends location data and a unique user identifier to Foursquare and a software bug tracking company called Bugfender. The app also sends the phone's advertising ID to Google. ProudCrowd states that it will update the app and its privacy policies in the future. EPIC has told Congress that private companies must establish privacy safeguards for digital contact tracing.
  • EPIC Seeks Records About Utah and North Dakota's Contact Tracing Apps » (May. 14, 2020)
    EPIC has filed two government records requests to Utah and North Dakota seeking information about their contact tracing apps launched in response to the COVID-19 pandemic. Utah launched Healthy Together, an app that tracks individual movements using Bluetooth and location tracking services. North Dakota similarly launched its own contact tracing app called Care19, which collects GPS location data, WiFi data, and cell phone tower data to track an individual's movements over time. Both Utah and North Dakota claim that the use of the apps are voluntary and that users can delete the sensitive data collected. But neither state has disclosed any privacy assessments or independent audits conducted on the apps. On the federal level, EPIC is pursuing a Freedom of Information Act request with the Department of Justice seeking DOJ legal analysis about the collect of GPS and cell phone location data. EPIC has also told Congress that government agencies and private companies must establish privacy safeguards for digital contact tracing.
  • EPIC Settles FOIA Case Regarding DHS Drone Reports » (May. 13, 2020)
    EPIC settled a Freedom of Information Act lawsuit against the Department of Homeland Security to obtain public release of a drone status report and other related documents required by a 2015 Presidential Memorandum. The memorandum required the report to detail the status of implementing privacy, civil liberties, and civil rights protections against DHS' use of surveillance drones. The 2015 DHS status report attempted to justify the use of drones by Customs and Border Protection, but a 2018 Inspector General report called into question the CBP's drone privacy policies and procedures. The Inspector General found that CBP failed to complete a required analysis for a drone surveillance system and failed to implement effective safeguards for information collected by drones. EPIC has called on Congress to "establish drone privacy safeguards that limit the risk of public surveillance."
  • EPIC Settles FOIA Case About Facial Recognition Opt-Out Procedures At Airports » (Apr. 24, 2020)
    EPIC has settled a Freedom of Information Act lawsuit against Customs and Border Protection. EPIC sought records concerning the agency's "alternative screening procedures" to determine whether travelers are able to to opt-out of facial recognition at airports. EPIC filed the request after Custom and Border Protection repeatedly modified the opt-out language, making it increasingly difficult for travelers to opt-out. EPIC obtained numerous documents, including the Standard Operation Procedure that states that the alternative procedure for U.S. citizens is a review of their U.S. passport. At the end of last year, CBP removed its proposal to require all U.S. citizens to undergo mandatory face recognition at airports. Last year, Buzzfeed featured documents from a related FOIA lawsuit about CBP's flawed airport facial recognition program.
  • EPIC Settles Lawsuit for Kavanaugh White House Records » (Apr. 20, 2020)
    EPIC has settled a Freedom of Information Act lawsuit against the National Archives for records pertaining to Justice Kavanaugh's work on surveillance in the Bush White House post-9/11. EPIC will receive attorneys fees as part of the settlement. The records released to EPIC through the lawsuit revealed that Kavanaugh discussed warrantless wiretapping with program architect John Yoo. The records released to EPIC also show that, after the New York Times exposed the program, Kavanaugh exchanged hundreds of emails with White House and DOJ staff about the program, gathered legal justifications for the program, and drafted speeches defending warrantless wiretapping. Congress ended the controversial program in 2015, following extensive hearings. On the DC Circuit Court of Appeals in 2015, Judge Kavanaugh issued a surprising opinion on surveillance authority. Senator Leahy pursued Kavanaugh's views on surveillance during the Supreme Court nomination hearing.
  • Justice Department Expedites EPIC's FOIA Request for Policies on Location Data Use » (Apr. 16, 2020)
    The Department of Justice has agreed to expedite EPIC's FOIA request for information about the agency's legal guidance on the use of location data. EPIC asked for records "regarding the lawfulness of the use of location data for public health surveillance." EPIC's request went to the Office of Legal Counsel which provides legal advice to the President and all executive branch agencies. EPIC has previously litigated several high-profile FOIA cases against the OLC, including EPIC v. DOJ (legality of the NSA PRISM Program) and EPIC v. DOJ (legality of the warrantless wiretapping program). Last month the Wall Street Journal reported that the White House is considering surveillance techniques, such as geolocation and facial recognition.
  • EPIC Seeks Information about Secretary Ross’s Decision to Delay Census Data Reporting » (Apr. 14, 2020)
    EPIC sent an urgent Freedom of Information Act request to the Commerce Department today, seeking records about Secretary Wilbur Ross's decision to delay the 2020 Census reporting deadlines. In a statement this week Commerce Secretary Ross and the Census Bureau Director asked Congress for a four-month delay to "deliver final apportionment counts" that would be used in congressional redistricting. Rep. Carolyn B. Maloney, Chair of the House Oversight Committee, said that the administration is "stonewalling in providing information" that is "vital in assessing" the proposed extension. In a 2018 letter to Congress, EPIC said "the Census is an essential part of understanding the changing demographics in America. The census helps ensure evidence-based policy decisions and census data is the source of much political and economic planning in the United States."
  • EPIC Obtains Documents on Tech Industry and Countering Violent Extremism » (Apr. 10, 2020)
    Through a Freedom of Information Act request EPIC obtained documents about a 2016 meeting with the leaders of the tech industry on countering violent extremism. The meeting included Attorney General Loretta Lynch, FBI Director Jame Comey, and Director of National Intelligence James Clapper. The documents EPIC obtained reveal the attendees, agenda items, and email discussions in preparation for the meeting. Reports at the time indicated that tech leaders and administration officials were concerned about extremist content on social media. Administration officials also raised concerns about encryption. EPIC has long supported strong encryption to protect Internet users from financial fraud, identity theft, and other crimes. EPIC filed a "friend of the court" brief in support of Apple's challenge in the FBI's decryption order, noting that far more cellphones were lost or stolen than were obtained by law enforcement agencies in the course of an investigation.
  • EPIC Seeks Records About Oracle's Proposed System to Track COVID Patients » (Apr. 8, 2020)
    EPIC has filed an urgent FOIA request to obtain information about a system, proposed by Oracle CEO Larry Ellison, to track COVID patients who are given experimental drug therapies. Oracle's "COVID-19 Therapeutic Learning System" urges healthcare companies to provide sensitive health information to Oracle. President Trump recently stated that federal agencies will be able to access data from the system. Ellison proposed a national identity card after the attacks on the United States on 9-11. Congress rejected that plan and made clear that L[national identification systems are not authorized] in the United States. EPIC has also filed FOIA requests to the Department of Justice and other federal agencies concerning the tracking and monitoring of Americans during the pandemic.
  • Trump Removes Inspector General for Intelligence Agencies » (Apr. 7, 2020)
    President Trump has removed Inspector General of the Intelligence Community Michael Atkinson from his post. The President cited Atkinson's referral to Congress of a whistleblower complaint concerning Trump's efforts to have Ukraine investigate former Vice President Joe Biden. Atkinson was required by law to transmit the report to Congress. EPIC has long fought for stronger oversight of U.S. intelligence agencies, and has pursued FOIA lawsuits against the CIA, the FBI, the ODNI, and the NSA. In EPIC v. Department of Justice, EPIC is currently seeking release of the complete Mueller Report, which details foreign interference in the 2016 presidential election. The DOJ recently submitted the full Mueller Report to a federal judge, who will determine what additional material must be released to the public.
  • EPIC Pursues Information About Predictive Policing Programs » (Apr. 7, 2020)
    EPIC has filed a detailed FOIA request with the Department of Justice for information about Predictive Policing and Risk Assessment programs, funded by the federal government. The programs are described in a 2014 Justice Department report that EPIC obtained in the lawsuit, EPIC v. DOJ. The 2014 DOJ report warned that "individual liberty is at stake" with predictive policing, but many of these systems have gone forward nonetheless. EPIC maintains a comprehensive resource on risk assessments systems in the Criminal Justice System.
  • DOJ Responds to EPIC FOIA on Location Data » (Apr. 3, 2020)
    In response to EPIC's Freedom of Information Act request to the Justice Department for information about the use of location data, including cell phone records, to counter the pandemic the DOJ wrote there are no "responsive records." EPIC had asked for "all legal memos, analysis, communications, and guidance documents, in the possession of the Department of Justice, concerning the collection or use of GPS data and cell phone location data for public health surveillance." The DOJ forwarded EPIC's request to its Office of Legal Counsel to see if responsive records exist in that office. EPIC will continue to seek information about the DOJ's views on the use of location data, and particularly phone records. After 9-11, the Justice Department supported the warrantless surveillance of Americans, a program that was later terminated after the New York Times broke the story, and EPIC pursued a FOIA lawsuit and then a Supreme Court petition.
  • ICE Seeks to Expand Use of Facial Recognition » (Apr. 2, 2020)
    According to the Statement of Work, Immigration and Customs Enforcement is seeking to connect the agency's facial recognition system to the DHS Gang Intelligence Application database. ICE recently solicited contracts to overhaul the agency's interface with the Gang Intelligence Application database to establish a face template for all photos added to the database. EPIC has filed a Freedom of Information Act request seeking details of ICE's use of Clearview AI's facial recognition technology. The secretive tech company scraped billions of facial images from Internet websites. EPIC and more than a hundred organizations have called for a moratorium on facial recognition technology.
  • EPIC Seeks Records About Lawfulness of Use of Location Data for Public Health Surveillance » (Mar. 24, 2020)
    EPIC has submitted a Freedom of Information Act request to the Department of Justice seeking legal analysis concerning the collection and use of GPS and cell phone location data for public health surveillance. EPIC explained "The Department of Justice plays a key role advising the President regarding the lawfulness of proposed activities, and particularly the proposed expansion of government authorities during a time of national crisis." EPIC wrote, "If the Department of Justice is considering the use of cell phone data to address the public health crisis, it should first consider whether the use is lawful and that analysis should be made available to the public." EPIC pursued a FOIA lawsuit during the Bush Administration, EPIC v. DOJ, for the legal memos concerning the warrantless wiretapping program that was later repealed by Congress.
  • DOJ Releases 2019 FOIA Litigation and Compliance Report » (Mar. 19, 2020)
    The Department of Justice has released the 2019 FOIA Litigation and Compliance Report which details the DOJ's efforts to encourage agency compliance with the FOIA across federal agencies. DOJ updated the Guide to the Freedom of Information Act, with recent court decisions. The DOJ report also summarizes agency guidance, including the application of Exemption 4 after the Supreme Court expanded the definition of "confidential" information. On that issue, EPIC filed an amicus brief in Food Marketing Institute v. Argus Leader Media telling the Supreme Court that access to commercial records is critical for government oversight. EPIC celebrated Sunshine Week with the 2020 EPIC FOIA Gallery, highlighting important EPIC FOIA work from the past year, including EPIC's case for the release of the Mueller Report, EPIC v. Department of Justice.
  • EPIC Celebrates Sunshine Week with 2020 FOIA Gallery » (Mar. 16, 2020)
    In celebration of Sunshine Week, EPIC has unveiled the 2020 FOIA Gallery. Since 2001, EPIC has annually published highlights of EPIC's most significant open government cases. For example, last year EPIC filed the first lawsuit in the country for the public release of the Mueller Report. The federal court rebuked Attorney General Barr and agreed to review the complete Mueller Report to determine what additional material must be released. EPIC also prevailed in EPIC v. the Commission on AI. A federal court ruled that the Commission on Artificial Intelligence is subject to the FOIA. Following the court's decision, the AI Commission released documents about its activities to EPIC. In this year's FOIA gallery, EPIC also highlighted pre-trial risk assessment reports, documents about Justice Kavanaugh's role in the warrantless surveillance program, a DHS drone status report, the Census data transfer plan, and more than 29,000 complaints against Facebook pending at the FTC.
  • EPIC Obtains Documents about DC Risk Assessment Use » (Mar. 11, 2020)
    In response to EPIC's FOIA Request, the DC Pretrial Services Agency produced several documents about its risk assessment instrument developed and validated by Maxarth. The government reduced the number of factors in risk factors from 70 to 43 in 2019 after review, and place more emphasis on recent criminal charges. EPIC also obtained a 2019 Validation Study and a Predictive Bias report. The Validation Study rated the predictive ability "sufficient." EPIC has obtained documents about pre-trial risk assessments nationwide as well as a scoring system developed by the DHS to assign risk assessments to travelers, including US citizens. EPIC has urged government agencies to make transparent algorithmic-based decision making to ensure fairness and accountability.
  • EPIC Seeks Records About the Government's Use of Clearview AI App » (Mar. 6, 2020)
    EPIC has filed a Freedom of Information Act request to several government agencies seeking records about the government's use of Clearview AI technology. Clearview AI permits law enforcement agencies to conduct suspicionless searches of people in public spaces. The company scraped billions of facial images, without permission, from websites, including Facebook, Youtube, Venmo, and Twitter. Clearview's recently stolen client list revealed that the company has sold its surveillance technology to more than 2,200 law enforcement and government agencies, and companies across 27 countries. EPIC, and more than a hundred organizations, have called for a moratorium on facial recognition technology.
  • In FOIA Case, EPIC Obtains New Documents From AI Commission » (Mar. 4, 2020)
    EPIC has obtained a more documents from the National Security Commission on Artificial Intelligence. The records obtained by EPIC show that the AI Commission was aware of work on algorithmic transparency and AI bias. But the Commission's recent report to Congress did not endorse these recommendations, instead criticizing EU privacy law and calling for greater "government access to data on Americans." The Commission's disclosure follows a court ruling in EPIC v. AI Commission that the Commission is subject to the FOIA. Before issuing its report, the AI Commission held regular secret meetings with tech firms and defense contractors but did not gather opinions from the American public. EPIC is also litigating to enforce Commission's obligation to hold open meetings.
  • Supreme Court to Hear Freedom of Information Act Case » (Mar. 2, 2020)
    The U.S. Supreme Court announced today it will consider a Freedom of Information Act case about the government's attempts to withhold documents from the public under the "deliberative process" exemption. In U.S. Fish and Wildlife Services v. Sierra Club, a federal appeals court ordered a federal agency to produce agency documents about a proposed regulation concerning endangered species. The Ninth Circuit held that the documents were not "predecisional." EPIC frequently litigates Freedom of Information Act cases to challenge the government withhold public records. EPIC is currently litigating for the release of the complete Mueller Report.
  • EPIC Obtains DHS Report About 2016 Election Threats » (Feb. 28, 2020)
    Through EPIC's lawsuit against the DHS, EPIC obtained a previously undisclosed Report about security breaches prior to the 2016 Presidential Election. The DHS/FBI report "Threats of Federal, State, and Local Government Systems" describes attacks on US elections and includes recommendations for cybersecurity risks. In the FOIA lawsuit, EPIC seeks to determine whether the DHS responded effectively to election security threats in 2016, The case is EPIC v. DHS, 17-2047 (D.D.C.).
  • EPIC Obtains Documents from Mississippi Corrections » (Feb. 21, 2020)
    In response to a public records request, EPIC received documents from the Mississippi Department of Corrections detailing their use of risk assessment tools. The results show that the Department uses risk assessments from pre-trial through parole. The document released to EPIC also show efforts to comply with the validation requirements of state law passed in 2019. The documents disclosed include also sample scoring sheets, scripts, four different trainings, and a manual on the risk assessment software. EPIC has obtained documents about pre-trial risk assessments from several states as well as a scoring system developed by the DHS to assign risk assessments to travelers, including US citizens.
  • EPIC Obtains Documents About TSA's VIPR Program » (Feb. 21, 2020)
    Through a FOIA request, EPIC has obtained documents (pt. 1, 2, 3) about the TSA's "Visible Intermodal Prevention and Response" program. Created in 2004, the VIPR teams worked with law enforcement agencies to conduct warrantless searches at public events, including festivals, sporting events, and bus stations. The TSA released to EPIC planning guidance, an operations directive, operating procedures, and activity summary reports. However, the EPIC request revealed that the TSA failed to complete civil rights and civil liberties impact assessments required by law. The VIPR program ended in 2019. The VIPR program used "risk-based" profiling and "behavior detection" to search and detain individuals. Two GAO reports (2013, 2017)questioned the reliability of TSA's behavioral indicators, which included, for example, "assessing the way an individual swallows or the degree to which an individual's eyes are open."
  • In FOIA Case, EPIC Obtains Details on State Department's Facial Recognition Program » (Feb. 19, 2020)
    In response to EPIC's Freedom on Information Act lawsuit, EPIC v. State, the State Department has provided EPIC with several agency agreements concerning State Department facial recognition program. The Consular Consolidated Database contains millions of images from visa and passport applicants, which other federal agencies are now accessing for purposes unrelated to the processing of visa and passport application. The State Department agreements include the Labor, Interior, and Defense Departments. Several of the documents EPIC obtained concealed the name of the federal agency accessing the State Department database. In a related EPIC FOIA lawsuit, EPIC obtained documents concerning Customs and Border Protection use of images from the State Department.
  • EPIC to Court: Order AI Commission to Open Meetings, Records » (Feb. 19, 2020)
    EPIC has filed a brief urging a federal court to enforce the transparency obligations of the National Security Commission on Artificial Intelligence. EPIC explained that the AI Commission must hold open meetings and publish its records on a regular basis. The court previously ruled that the AI Commission must comply with EPIC's Freedom of Information Act request, but the Commission now claims that it is exempt from a related statute that requires advisory committees to operate transparently. EPIC told the court that "as is often the case for federal entities, the AI Commission must comply with two (or three, or more) statutory obligations at the same time." The Commission, which is tasked with developing U.S. AI policy, recently released a report to Congress criticizing the EU General Data Protection Regulation and calling for greater "government access to data on Americans." The AI Commission met frequently in secret with lobbyists and private contractors, but never gathered opinions from the American public.
  • EPIC Settles ICE Lawsuit about Palantir and Profiling » (Jan. 31, 2020)
    EPIC has settled a Freedom of Information Act lawsuit against Immigration and Customs Enforcement. EPIC sought records about the agency's use of Palantir's technology for mass surveillance. The documents obtained by EPIC revealed the vast capabilities of agency program to link phone numbers, GPS data, and social network data. The FALCON database, developed by Palantir, also includes sensitive data such as social security numbers, financial records, call records, ISP records. In previous comments, EPIC urged the agency to limit the data gathered, narrow the exemptions to the Privacy Act, and remove the routine use disclosures. As a consequence of the successful litigation, EPIC will receive attorneys fees.
  • EPIC FOIA - Kavanaugh Drafted White House Speeches on Warrantless Wiretapping » (Dec. 18, 2019)
    Emails obtained by EPIC in a FOIA lawsuit show that now Justice Kavanaugh, as a top White House advisor, drafted several speeches defending warrantless wiretapping after the New York Times exposed the controversial program in 2005. EPIC has created an index of the email subject lines to illustrate Kavanaugh's role in President Bush's 2006 State of the Union, former Attorney General Gonzales' January 2006 speech at Georgetown Law, and speeches promoting border surveillance. Kavanaugh was particularly involved in revising a paragraph on the NSA program in the 2006 State of the Union. Documents previously obtained by EPIC revealed that Kavanaugh exchanged hundreds of emails with White House and DOJ staff about the NSA surveillance program and gathered legal justifications for the program. Congress ended the controversial program in 2015, following extensive hearings. On the DC Circuit Court of Appeals in 2015, Judge Kavanaugh issued a surprising opinion on surveillance authority. Senator Leahy pursued Kavanaugh's views on surveillance during the Supreme Court nomination hearing.
  • EPIC Pursues Release of Location Tracking Orders » (Dec. 17, 2019)
    EPIC has moved for summary judgment in EPIC v. DOJ, concerning law enforcement's collection of cell site location data through "§ 2703(d) orders." In Carpenter v. United States, the Supreme Court ruled that these searches were unconstitutional. EPIC filed multiple Freedom of Information Act requests to obtain the government orders issued between 2016 and 2019. However, the DOJ claimed that it "does not track" the information EPIC sought and refused to search for records. EPIC explained to the Court that the DOJ has not satisfied its obligations under the FOIA. EPIC also charged that the agency has engaged in "an unlawful pattern and practice" of refusing to search files even when it could do so. EPIC stated that "This unlawful agency practice impacts EPIC and all other requesters who would seek disclosure of records" at the Department of Justice. The case is EPIC v. DOJ, No, 18-1814 (D.D.C.).
  • DHS Agrees to Release Documents About Election Cybersecurity to EPIC » (Nov. 27, 2019)
    EPIC and DHS have filed a joint status report in EPIC v. DHS. The federal agency has agreed to reprocess previously withheld documents about election security. EPIC filed a Freedom of Information Act lawsuit in 2017, immediately after the agency's decision to designate election systems as "critical infrastructure." The announcement followed the determination that Russia meddled in the 2016 presidential election. The designation also gave the DHS new responsibilities to help protect state election systems. Over the course of litigation, DHS has provided hundreds of pages to EPIC about the agency's role in election system security. But the agency has also withheld information sought by EPIC, including: (1) documents concerning contacts between DHS and State Election Officials, (2) Election Task Force meeting minutes, (3) documents about risk characterizations and analysis reports on Russian interference; and (4) incident reports and vulnerabilities in election systems. Because the 2020 election is fast approaching, EPIC sought the prompt release of these records so that Congress and the public could assess the effectiveness of the DHS security program. The recent court filing between EPIC and the DHS should move the process forward. The case is EPIC v. DHS, 17-2047 (D.D.C).
  • EPIC Obtains Documents about Nebraska's Flawed Risk Assessment Software » (Nov. 21, 2019)
    In response to EPIC's Freedom of Information Act request, the Nebraska Department of Correctional Services has provided to EPIC several documents about Nebraska's use of pre-trial risk assessments. Emails among state officials reveal concerns about the accuracy of the Vant4ge algorithm used for risk assessment. The head of the state agency wrote, "there has not been consistency in how the STRONG-R training is delivered" and "there are errors in how the 'severity index' of specific crimes is coded in the Vant4ge software" which "affect the final risk and needs score calculations produced by the assessment." According to the contract obtained by EPIC, Nebraska committed to continue with Vant4ge until 2022. EPIC previously pursued several lawsuits to obtain information about "predictive policing" and "future crime prediction" algorithms. EPIC obtained documents about pre-trial risk assessments as well as a scoring system developed by the DHS to assign risk assessments to travelers, including US citizens. EPIC has urged government agencies to make transparent algorithmic-based decision making.
  • EPIC Obtains Docs about Critical Infrastructure Designation for Election Systems » (Nov. 18, 2019)
    In a FOIA lawsuit, EPIC has obtained an original draft of the proposal by former DHS Secretary Jeh Johnson to designate state election systems as critical infrastructure. Released in a set of previously withheld documents, the draft memo states "[g]iven the vital role elections play in this country, certain systems and assets of election infrastructure meet the statutory definition of critical infrastructure in fact and in law." The DHS policy was announced on January 6, 2017, the same day the ODNI found extensive Russian interference in the 2016 Presidential election. EPIC later litigated for the release of the complete ODNI report, which found that Russian intelligence services had "obtained and maintained access to elements of multiple U.S. state or local electoral boards." EPIC also obtained from DHS documents about the background and implementation of the critical infrastructure designation. Other documents released as a result of EPIC's suit show the DHS continued to encourage state efforts in election security by making federal resources available on a voluntary basis. The case is EPIC v. DHS, No. 17-2047.
  • EPIC to Congress: FOIA Critical to Homeland Security Oversight » (Oct. 18, 2019)
    EPIC has told a House committee that the Freedom of Information Act is critical to keep the Department of Homeland Security accountable. The House Homeland Security Committee held a hearing this week on "The Public’s Right to Know: FOIA at the Department of Homeland Security.” EPIC has brought many FOIA cases against the DHS, including those concerning backscatter x-ray devices in airports, a DHS program to track journalists, and the CBP biometric entry-exit system. In 2011, EPIC urged Congress to end the agency’s political review of FOIA requests. In 2012, EPIC led an effort to reform the DHS treatment of fee wavers. And in 2016, the DHS revised FOIA regulations, reflecting several of EPIC’s recommendations. In comments this week, EPIC observed that DHS’s FOIA processing does not compare favorably with other federal agencies. EPIC recommended that DHS improve the processing of FOIA requests and respond to appeal authorities. EPIC wrote that continued oversight of the DHS is critical. "No federal agency has greater budget authority to develop systems of surveillance directed towards U.S. residents,” EPIC said.
  • Senator Cantwell to FTC: Settlement Lets Facebook "Off the Hook" » (Oct. 15, 2019)
    Senator Maria Cantwell [D-WA], Ranking Member on the Senate Commerce Committee, has sent a letter to Federal Trade Commission Chairman Joseph Simons regarding the FTC's controversial settlement with Facebook. "I am concerned that the settlement lets Facebook off the hook for unspecified violations, and given the many public reports of Facebook's mishandling of consumer data, it is difficult to fully understand the impact of this provision on the settlement on the data privacy protection of the millions of U.S. consumers that have used and continue to use Facebook," Cantwell wrote to Simons. Through a Freedom of Information Act Request. EPIC has obtained thousands of new consumer complaints (part 1, part 2) against Facebook. EPIC is formally challenging the proposed settlement, charging that the Commission has failed to investigate thousands of complaints against the company.
  • EPIC Uncovers 3,156 More Facebook Complaints at FTC—Over 29,000 Now Pending » (Sep. 22, 2019)
    Through a Freedom of Information Act Request, EPIC has obtained thousands of new consumer complaints (part 1, part 2)against Facebook. The most recent documents, released to EPIC, follow the Commission’s proposed $5 b settlement in July. Among the complaints uncovered by EPIC are those from consumer groups and members of Congress. EPIC also obtained records of new complaints in the FTC’s Consumer Sentinel database. EPIC earlier uncovered 26,000 complaints against Facebook since the announcement of the 2011 consent order. EPIC is formally challenging the proposed settlement with Facebook, charging that the Commission has failed to investigate thousands of complaints against the company.
  • EPIC Obtains New Documents in Mueller Case » (Sep. 19, 2019)
    EPIC has obtained new documents concerning Robert Mueller's investigation into Russian interference in the 2016 election. The records were released in EPIC v. Department of Justice, EPIC's case for the release of the Mueller Report and related documents. The documents consist of previously undisclosed emails between Mueller's office and the Justice Department concerning the Special Counsel's budget. EPIC recently argued in court for the release of the complete and unredacted Mueller Report. A ruling in the case is expected this fall. The book "EPIC v. DOJ: The Mueller Report" is available for purchase at the EPIC Bookstore.
  • EPIC Renews Request for Information About National AI Commission » (Sep. 16, 2019)
    EPIC has renewed its request with the National Security Commission on Artificial Intelligence for records and access to Commission meetings. Created by Congress in 2018, the AI Commission is tasked with considering "the methods and means necessary to advance the development of" AI to address national security and defense needs. But the Commission has operated almost entirely in secret, unlawfully refusing to publish any meeting notices or to allow any public participation. The Commission is dominated by representatives of large tech firms, including Google and Microsoft. EPIC previously requested records about the AI Commission and has urged Congress to ensure that the Commission operates transparently.
  • EPIC Challenges Justice Department's Refusal to Search for Location Tracking Orders » (Aug. 26, 2019)
    EPIC has filed an amended complaint against the Justice Department, charging that the agency engages in a "pattern and practice" of violating the Freedom of Information Act. Earlier EPIC filed a FOIA lawsuit to compel the DOJ to disclose records about locational surveillance that the Supreme Court ruled was unconstitutional in Carpenter v. United States. EPIC first filed requests in 2017 to obtain copies of government applications to ISPs that require the disclosure of customers communications. After EPIC filed suit in August 2018, the DOJ refused to search for the records and claimed that it "does not track" the surveillance orders. EPIC now alleges that the DOJ has engaged in a pattern and practice that violates the FOIA. Federal agencies are required by law to search for records that are "reasonably described." EPIC wrote "agency's unlawful policy, pattern, and practice of refusing to conduct a search in response to reasonably described FOIA requests such as EPIC's will continue absent intervention by this Court." The case is EPIC v. DOJ, No. 18-1814 (D.D.C.).
  • EPIC v. DEA: Court Rules Agency Can Keep Secret the Names of Agencies Using Hemisphere » (Aug. 7, 2019)
    A federal court in Washington, DC ruled this week that the DEA does not have to disclose to EPIC the names of the other agencies that use the Hemisphere call records database managed by AT&T. Earlier in the same FOIA case, EPIC obtained documents from DEA which revealed that both the FBI and CBP query the Hemisphere database. The agency was allowed to submit a secret affidavit in support of its claims, but the court ordered the agency to file a revised declaration, "consistent with its recent disclosures to EPIC."
  • EPIC Seeks Consumer Complaints about Facebook Pending Before FTC Prior to Settlement Agreement » (Jul. 25, 2019)
    EPIC has submitted an urgent Freedom of Information Act request to the Federal Trade Commission seeking all consumer complaints pending before the Commission at the time the agency entered into the settlement with Facebook. The proposed settlement order "resolves" all consumer complaints alleging violation of the consent order prior to June 12, 2019. Earlier this year, EPIC determined that there were 26,000 complaints against Facebook pending at the Commission. Many US privacy organizations have also filed detailed complaints with the Commission, alleging that Facebook's business practices violate the FTC Act and also the Children's Online Privacy Protection Act. The release of the information sought by EPIC could help the public and the Congress assess the adequacy of the proposed settlement.
  • Bi-Partisan FOIA Reform Bill Would Correct Recent Supreme Court Decision » (Jul. 25, 2019)
    Senators Chuck Grassley (R-IA), Patrick Leahy (D-VT), John Cornyn (R-TX), and Dianne Feinstein (D-CA) have introduced the Open and Responsive Government Act (S. 2220) to reverse the recent Supreme Court decision in Food Marketing Institute v. Argus Leader Media which overturned over 40 years of Freedom of Information Act precedent. The bill codifies the National Parks test, requiring that information may only be withheld from the public if disclosure would cause "substantial competitive harm" to the oompany that provided that information to the government. The bill also makes clear that agencies may only redact information under the FOIA's nine exemptions and cannot redact information as "non-responsive." In a press release Senator Leahy said, "The bill would limit the extent to which the government can use a recent Supreme Court opinion to justify abuses of a particular FOIA exemption to withhold information. And it would codify another court decision - one that the Trump administration increasingly ignores - prohibiting the government from withholding information on the tenuous rationale that it is supposedly not responsive to the FOIA request." According to Senator Grassley, "This balanced and bipartisan bill . . . mak[es] crystal clear where Congress stands on the public's right to know." EPIC submitted an amicus brief in the Food Marketing Institute case, warning the Court that changing the National Parks standard would deprive the public and groups such as EPIC access to important government information. EPIC frequently uses the FOIA to promote government oversight.
  • BREAKING - EPIC Seeks Public Release of FTC Settlement with Facebook » (Jul. 15, 2019)
    Today EPIC filed an expedited Freedom of Information Act request with the Federal Trade Commission, seeking the public release of the proposed settlement with Facebook. Last week the Wall Street Journal first reported that the FTC approved a $5 billion settlement with Facebook for violating a 2011 consent order that EPIC helped obtain. However, details about the settlement have not been disclosed. In January, EPIC recommended that the FTC 1) impose substantial fines; 2) establish structural remedies; 3) require compliance with Fair Information Practices; 4) reform hiring and management practices; and 5) restore democratic governance. In a series of FOIA cases, EPIC uncovered the biennial audits of Facebook, the number of complaints pending against Facebook at the Commission (26,000), and records of meetings by the chief agency official responsible for overseeing enforcement. EPIC also launched the #EnforceTheOrder campaign.
  • EPIC FOIA - FTC Enforcement Director Participated in Over 100 Meetings About Facebook Post-Cambridge Analytica » (Jul. 11, 2019)
    As a result of EPIC's Freedom of Information Act request, the Federal Trade Commission released records indicating that FTC Associate Director of Enforcement James A. Kohm participated in at least 162 meetings since the Commission adopted the consent order with Facebook in 2011. Almost 140 meetings occurred after Facebook admitted to the unlawful transfer of over 87 million user profiles to Cambridge Analytica. In March 2018, the FTC said it would reopen investigation of Facebook, but the agency has never taken an enforcement action against the country. EPIC launched the #EnforceTheOrder campaign this year to urge action by the FTC.
  • Bi-Partisan Effort Underway to Reform FOIA » (Jul. 11, 2019)
    Senators from across the aisle have criticized recent changes to the Freedom of Information Act and vow to introduce legislation to reform the FOIA. In Food Marketing Institute v. Argus Leader Media, the Supreme Court recently narrowed public access to government records. A few days later, the Environmental Protection Agency changed its FOIA regulations without a public comment opportunity. The EPA's changes are similar to the Department of the Interior's "awareness review" that allows political appointees to decide whether to withhold information and issue a misleading "no records" response. Senators Ed Markey (D-MA) and Chuck Grassley (R-IA) are both considering legislation in response. Senator Grassley stated, "[the] recent Supreme Court ruling and even new regulations in the EPA and the Department of Interior are undermining access to public information. . . Americans deserve an accountable government, and transparency leads to accountability." EPIC wrote an amicus brief in Food Marketing Institute, warning the Court that a change in the FOIA "would deprive the public, and government watchdogs such as EPIC, of access to important information about 'what the government is up to.'" EPIC frequently uses the FOIA to promote government oversight.
  • EPIC Files Court Papers for Release of Complete Mueller Report » (Jun. 25, 2019)
    EPIC has moved for summary judgment in EPIC v. Department of Justice, EPIC's case for the release of the complete and unredacted Mueller Report. EPIC told the Court that "the nation's ability to fully assess the Report is hindered by the decision of the Justice Department to withhold critical information from the American public." EPIC argued that the Justice Department had unlawfully redacted extensive material and urged Judge Reggie B. Walton to personally review the full Report. Judge Walton previously said EPIC's case should move "as expeditiously as humanly possible" and ordered the parties to brief the case on an accelerated schedule. A hearing on EPIC's motion is set for August 5. The case is EPIC v. Department of Justice, No. 19-810 (D.D.C.). Copies of the Mueller report obtained by EPIC, related materials, and background on the case is available for purchase at the EPIC Bookstore.
  • Supreme Court Limits Access to Government Records, Drops Harm Requirement for Withholding "Confidential" Information » (Jun. 24, 2019)
    The Supreme Court today narrowed public access to government documents by expanding the definition of "confidential" information. The 6-3 decision by Justice Gorsuch in Food Marketing Institute v. Argus Leader Media overturns four decades of caselaw which held that a company must show substantial competitive harm to block an open government request. Writing in dissent, Justice Breyer, joined by Justices Ginsburg and Sotomayor, emphasized that the FOIA required some showing of harm to prevent public release of business records collected by federal agencies. "The whole point of FOIA is to give the public access to information it cannot otherwise obtain." In an amicus brief, EPIC warned the Court that removing the harm requirement "would deprive the public, and government watchdogs such as EPIC, of access to important information about 'what the government is up to.'" EPIC described several of its own FOIA cases -- including the now defunct airport body scanner program and the ongoing probe of Facebook -- where access to commercial records made possible meaningful oversight and reform. Twenty members of the EPIC Advisory Board, distinguished experts in law, technology, and public policy, signed the amicus brief.
  • The State Department to Require Social Media Info from Visa Applicants » (Jun. 3, 2019)
    Reports indicate that the State Department will now require social media identifiers, email addresses, and phone numbers from nearly all visa applicants. EPIC submitted comments to the State Department opposing the plan to collect social media and personal communication information. EPIC urged the agency to retract the proposal, pointing out the substantial privacy, free expression, and security concerns the proposal raised. Last year, EPIC and the Brennan Center led a coalition of 55 privacy, civil liberties, and civil rights organizations in opposition to the State Department plan. EPIC, through a 2011 Freedom of Information lawsuit against the DHS, uncovered the first federal agency plan to monitor social media. Congress held hearings and the plan was suspended.
  • National Archives Releases New Kavanaugh Records » (May. 20, 2019)
    In response to EPIC's Freedom of Information Act lawsuit, the National Archives has released hundreds of new emails from Justice Kavanaugh's time in the White House. The emails concern the controversial surveillance programs Total Information Awareness, Computer Assisted Passenger Prescreening System II (CAPPS II), and Secure Flight. The contents of many emails were withheld in full. EPIC's FOIA lawsuit, along with a related lawsuit by Senator Richard Blumenthal, resulted in the public release of hundreds of thousands of pages about Justice Kavanaugh's work in the White House. The records include communications between Kavanaugh and John Yoo, the author of the warrantless surveillance program.
  • Trump Claims Executive Privilege Over Mueller Report » (May. 8, 2019)
    President Trump has claimed executive privilege in an attempt to withhold the redacted portions of the Mueller Report from Congress. The President's assertion goes far beyond the narrow limits of the privilege and conflicts with the Attorney General's recent statement to Congress that President Trump had "no plans" to claim executive privilege over the Report. ("Exhibit 7" In EPIC v. Department of Justice.) EPIC is pursuing the release of the full Mueller Report under the Freedom of Information Act. EPIC recently obtained an annotated version of the Report that contains new details about the extensive redactions made by the Justice Department. But the government has waived any assertion of executive privilege in EPIC's case, making EPIC uniquely positioned to challenge the redactions. EPIC will have a hearing in federal court concerning the release of related materials on June 17, 2019. EPIC's case for the release of the Mueller Report—the first in the nation—is EPIC v. Department of Justice, No. 19-810 (D.D.C.).
  • EPIC FOIA: Massive DHS Biometric Database Still Lacks a Privacy Impact Assessment » (May. 3, 2019)
    In response to EPIC's Freedom of Information Act request, the Department of Homeland Security confirmed that no privacy impact assessment has been completed for a vast DHS biometric database known as the "Homeland Advanced Recognition Technology." The HART database will include fingerprints, iris scans, and facial images on millions of individuals. The documents EPIC did obtain from DHS consist of privacy threshold reviews that indicate a privacy impact assessment is required and was expected by January 2019. A previous document obtained by EPIC show that the Homeland Advanced Recognition Technology database is part of the facial recognition Biometric Entry/Exit program at US airports.
  • In Mueller Case, EPIC Proposes Expedited Briefing and Court Review of Full Report » (Apr. 30, 2019)
    In a court filing today in Washington, DC, EPIC has proposed an expedited briefing schedule in its case for release of the full Mueller Report concerning "Russian Interference in the 2016 Presidential Election." EPIC also proposed that the Justice Department provide the full, unredacted report to the federal judge overseeing the case for review. The Department of Justice has informed EPIC that the agency will provide a processed version of the Mueller Report to EPIC as early as this Thursday. The parties are expected to appear before Judge Reggie Walton this Thursday at 10 am. EPIC will challenge the Department of Justice's withholding of substantial portions of the Mueller Report from the public. EPIC's case for the release of the Mueller Report—the first in the nation—is EPIC v. Department of Justice, No. 19-810 (D.D.C.).
  • EPIC Urges House Appropriations to Examine FBI Response to Russian Cyber Attacks » (Apr. 5, 2019)
    EPIC has asked the House Appropriations Committee to explore the FBI's failure to respond to cyberattacks. According to documents obtained by EPIC, the FBI is to notify victims of cyberattacks "even when it may interfere with another investigation or (intelligence) operation." But an AP investigation found that the FBI failed to notify hundreds of officials whose email was hacked during the 2016 election. Earlier this week, the Inspector General also found that the DOJ guidelines "do not consider the needs of victims of cybercrime." EPIC obtained the FBI's Victim Notification Procedures through a Freedom of Information Act lawsuit, EPIC v. FBI.
  • In Amicus Brief, EPIC Urges Supreme Court to Remove Census Citizenship Question » (Apr. 1, 2019)
    EPIC filed an amicus brief in Department of Commerce v. New York, urging the Supreme Court to uphold a New York federal judge’s decision to remove the citizenship question from the 2020 Census. EPIC warned that “collecting citizenship status information from hundreds of millions of U.S. residents presents enormous privacy and security concerns.” EPIC described the history of census privacy, including EPIC’s 2004 FOIA lawsuit which revealed that the Census Bureau transferred data on Arab-Americans to the DHS after 9/11. EPIC also explained that, “in failing to assess the risks that would result from the collection of personal data regarding citizenship status, the Census Bureau has violated its obligations under the E-Government Act." In a related matter, EPIC’s lawsuit to block the citizenship question, EPIC v. Commerce, is currently before the D.C. Circuit with an argument scheduled for May 8. EPIC has charged that the Census Bureau failed to complete required Privacy Impact Assessments prior to the decisions to collect personal data about citizenship. The Bureau concedes that it must complete the impact assessments but has so far failed to do so.
  • EPIC Files First Lawsuit for Special Counsel Report on Russian Election Interference » (Mar. 22, 2019)
    EPIC has filed a Freedom of Information Act lawsuit to obtain the final report by Special Counsel Robert Mueller concerning Russian interference in the 2016 U.S. presidential election. Attorney General William Barr notified Congress on Friday that the Special Counsel had delivered the final report. In November 2018, EPIC submitted a detailed Freedom of Information Act request to the Department of Justice seeking records about the investigation. The Special Counsel was authorized to conduct an investigation into Russian interference, including "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." Special Counsel Mueller has since brought criminal charges against 34 individuals and three organizations. EPIC, through its Democracy and Cybersecurity Project, has pursued multiple FOIA cases concerning Russian interference with the 2016 election, including EPIC v. FBI (response to Russian cyberattacks), EPIC v. ODNI (Russian hacking), EPIC v. IRS I (release of Trump's tax returns), EPIC v. IRS II (release of Trump's offers-in-compromise), and EPIC v. DHS (election cybersecurity). The case for the release of the Mueller Report is EPIC v. DOJ, No. 19-810 (D.D.C.) [Exhibits].
  • EPIC to Supreme Court: Access to Commercial Records is Critical for Government Oversight » (Mar. 22, 2019)
    EPIC has filed an amicus brief urging the Supreme Court to protect the public's right to access commercial information held by federal agencies. EPIC described several of its own FOIA case -- including the now defunct airport body scanner program and the ongoing probe of Facebook -- where access to commercial records made possible meaningful oversight and reform. EPIC also warned that private parties, "acting on behalf of public agencies and with public funding," often hide their activities. EPIC wrote, "The public must have access to commercial information in agency records to conduct effective oversight of government programs that implicate privacy." EPIC has filed several amicus briefs for the US Supreme Court and other federal courts in Freedom of Information Act cases. Twenty members of the EPIC Advisory Board, distinguished experts in law, technology, and public policy, signed the brief. The case is Food Marketing Institute v. Argus Leader Media, No. 18-481.
  • EPIC Seeks from FTC All Consumer Complaints about Facebook » (Mar. 18, 2019)
    EPIC has filed an urgent Freedom of Information Act request to the Federal Trade Commission seeking all pending complaints. As a result of the extensive work of consumer organizations, the Commission issued a consent order against Facebook in 2011 barring the company from making any future misrepresentations about the privacy and security of a user's personal information. But the FTC has failed to issue any fines or declare any of Facebook's actions, including the Cambridge Analytical scandal, a violation of the consent order. The FTC has also not published the number of pending consumer complaints against Facebook. With the one-year deadline of the reopening of the Facebook investigation approaching, EPIC has launched the campaign #EnforceTheOrder.
  • National Archives Provides to EPIC Index of Kavanaugh Records » (Mar. 14, 2019)
    In response to EPIC's Freedom of Information Act lawsuit, the National Archives has provided an index of Justice Kavanaugh's records that contains an accounting of all records released by the National Archives so far. The letter includes an index of all e-mail and text files, including those withheld in full or in part. There was unprecedented secrecy surrounding the nomination of Judge Kavanaugh to the Supreme Court. EPIC's FOIA lawsuit and a related request by Senator Richard Blumenthal resulted in the public release of hundreds of thousands of pages about Judge Kavanaugh's work in the White House. The records include communications between Kavanaugh and John Yoo, the architect of the warrantless surveillance program.
  • EPIC Among Nation's Leading FOIA Litigators » (Mar. 14, 2019)
    A report from the FOIA Project places EPIC among the top FOIA litigators in the United States, as measured by the number of FOIA lawsuits filed between 2001 and 2018. The FOIA Project provides comprehensive information on federal FOIA matters, including initial FOIA requests, administrative appeals, and FOIA lawsuits, and is operated by the Transactional Records Access Clearinghouse. The 2018 report on litigation by nonprofit groups finds that EPIC has filed a total of 74 FOIA lawsuits between 2001 and 2018, approximately divided between Democratic and Republican administrations. The other groups in the top 5 are Judicial Watch (391), ACLU (130), PEER (94), and CREW (88). EPIC celebrated Sunshine Week with the 2019 EPIC FOIA Gallery, highlighting important EPIC FOIA cases from the past year.
  • EPIC to Congress: FOIA Works » (Mar. 13, 2019)
    In advance of a hearing on the Freedom of Information Act, EPIC highlighted several recent open government cases. EPIC told the Committee about documents EPIC obtained through FOIA requests and litigation, including documents EPIC obtained, widely reported this week, about the plan to expand facial recognition at US airports. EPIC also described records obtained from the Federal Trade Commission about the agency's failure to enforce the consent order against Facebook. And EPIC described the open government case against the IRS seeking the release of President Trump's tax returns. Since 2001, EPIC has published an annual FOIA gallery in honor of Sunshine Week.
  • Following EPIC FOIA, Senators Tell DHS to Suspend Facial Recognition » (Mar. 12, 2019)
    After a Buzzfeed story featured documents obtained by EPIC about plans to expand facial recognition at airports, Senators Ed Markey (D-MA) and Mike Lee (R-UT) called for the suspension of the program. The Senators stated that "DHS should pause their efforts until American travelers fully understand exactly who has access to their facial recognition data, how long their data will be held, how their information will be safeguarded, and how they can opt out of the program altogether." Today EPIC filed a Freedom of Information lawsuit, EPIC v. CBP, to determine whether the agency is allowing travelers to opt-out of facial recognition. EPIC's earlier lawsuit against the DHS led to the removal of backscatter x-ray devices at US airports.
  • Buzzfeed: EPIC Docs Reveal Flawed Facial Recognition Program » (Mar. 11, 2019)
    At the start of Sunshine Week, Buzzfeed featured documents obtained by EPIC about a deeply flawed facial recognition program that could impact all U.S. travelers returning to the United States. The documents, released following an EPIC FOIA request, describe the Administration's plan to extend a faulty CBP pilot program to TSA, ICE, and the Coast Guard. Documents previously obtained by EPIC, following a lawsuit against DHS, found similar problems with a facial recognition program at the southern border.
  • EPIC Celebrates Sunshine Week With 2019 FOIA Gallery » (Mar. 11, 2019)
    In celebration of Sunshine Week, EPIC has unveiled the 2019 FOIA Gallery. Since 2001, EPIC has published annually highlights of EPIC’s most significant open government cases and Freedom of Information Act requests. In 2018, EPIC obtained e-mails about mass surveillance programs developed by Justice Kavanaugh as a White House legal advisor, records about the controversial DHS "media monitoring program," communications between the FTC and Facebook about the agency's failure to enforce the 2011 Consent Order, and documents that revealed obscure travel blacklists in the "SecureFlight" program. In the latest FOIA gallery, EPIC also highlight a significant ruling from the D.C. Circuit in EPIC v. IRS where the court stated that the IRS "misunderstands its FOIA disclosure obligations." This is one of two cases EPIC filed to obtain the public release of President Trump's tax records. In EPIC v. IRS, the district court noted that President Trump tweeted, "For the record, I have ZERO investments in Russia. Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA - NO DEALS, NO LOANS, NO NOTHING!"
  • EPIC FOIA: National Archives Releases New Batch of Kavanaugh Records » (Feb. 22, 2019)
    In response to EPIC's Freedom of Information Act lawsuit, the National Archives has just released thousands of records about Justice Kavanaugh work in the White House Counsel's office after 9-11. The records include e-mails from 2002-2003, briefings, meeting memos, and correspondence, and office files about anti-terrorism legislation and access to presidential records. Emails previously released to EPIC revealed that Kavanaugh and John Yoo, architect of the warrantless surveillance program overturned by the US Congress, exchanged messages about the development of domestic surveillance programs. During the Supreme Court nomination hearing, EPIC warned the Senate that the nominee has shown little regard for the Constitutional privacy rights of Americans as a top White House legal advisor and then as a federal appellate judge.
  • EPIC FOIA: Kavanaugh and Yoo Corresponded at White House about Warrantless Surveillance » (Jan. 10, 2019)
    Newly released emails from the Bush Whitehouse reveal that Brett Kavanaugh and John Yoo, architect of the warrantless surveillance program, exchanges several messages about warrantless surveillance programs in the fall of 2001. The release follows EPIC's FOIA lawsuit for Justice Kavanaugh's records from when his nomination was before the United States Senate. The new records show that there were multiple emails about the warrantless surveillance program that was eventually overturned by the US Congress. The emails also reference a signing statement—likely for the 2001 authorization of military force — and a discussion thread "FISA [Foreign Intelligence Surveillance Act] letter." The agency previously identified several hundred e-mails about surveillance programs that Kavanaugh authored. But the text of many emails was withheld in full, leaving open questions about Kavanaugh's role in the post-9/11 surveillance programs.
  • National Archives Moves Forward EPIC's Request for Kavanaugh White House Records » (Dec. 14, 2018)
    The National Archives has announced its intent to release dozens of undisclosed emails concerning Justice Kavanaugh's role in controversial White House surveillance programs. The announcement comes in response to EPIC’s Freedom of Information Act lawsuit, which previously led the agency to discover hundreds of Kavanaugh email exchanges about warrantless wiretapping and passenger profiling. Prior to Kavanaugh’s confirmation hearing, EPIC warned that Kavanaugh—both as a White House legal advisor and then as a federal appellate judge—showed little regard for the constitutional privacy rights of Americans. The Kavanaugh emails are set to be released to EPIC in March.
  • EPIC Investigates Airport Facial Recognition Opt-Out Procedures » (Dec. 12, 2018)
    In an urgent FOIA request, EPICis seeking documents from CBP about the procedures for travelers to opt-out of biometric entry/exit program. EPIC found that CBP frequently changes the program without any formal procedures. One consequence is that it is now more difficult for travelers to opt-out of the screening procedure EPIC wrote that "CBP is modifying rules as it is implementing the program," contrary to federal law. Earlier this week, EPIC urged Congress to suspend the program until privacy safeguards and meaningful opt-out procedures are established. In comments to the DHS Data Privacy and Integrity Advisory Committee, EPIC explained the substantial privacy risks of CBP's use of facial recognition technology.
  • Facing EPIC Lawsuit, FAA Scraps Secretive Drone Committees » (Nov. 15, 2018)
    The FAA's Drone Advisory Committee, facing an open government lawsuit from EPIC, has scrapped the secretive committees that developed drone policy. EPIC filed a lawsuit challenging the closed-door meetings with agency officials and industry reps. EPIC also charged that the FAA ignored the privacy risks posed by the deployment of drones—even after identifying privacy as a top public concern. The FAA acknowledged that the committees provided policy advice, but the FAA failed to comply with open government laws. EPIC has a long history of promoting government transparency and advocating for privacy protections against drones.
  • EPIC FOIA: National Archives Finds More Kavanaugh E-mails on Surveillance Programs » (Oct. 24, 2018)
    The National Archives has found hundreds of e-mails about Justice Kavanaugh's role in controversial White House surveillance programs, including warrantless wiretapping and passenger profiling. Following EPIC's Freedom of Information Act lawsuit, the agency found hundreds of Kavanaugh email messages about the wiretapping program from 2003. Kavanaugh also exchanged 95 e-mail messages about the controversial renewal in 2004, which the Attorney General and FBI Director opposed. There are also 573 Kavanaugh email messages about "Lichtblau" and "Risen" prior to the New York Times expose on the warrantless wiretapping program. The National Archives also found more than 8,000 e-mails that Kavanaugh sent or received about passenger profiling programs. Prior to the nomination hearing, EPIC warned that Kavanaugh, both as a White House legal advisor and then as a federal appellate judge, showed little regard for the constitutional privacy rights of Americans.
  • EPIC v. FTC: EPIC Obtains Facebook-FTC Emails About 2011 Consent Order » (Oct. 19, 2018)
    In response to EPIC's Freedom of Information Act lawsuit, the FTC has released agency emails about the 2011 Facebook Consent Order. Following a detailed complaint by EPIC and other consumer privacy organizations, the FTC issued an order in 2011 that required biennial audits of Facebook's privacy practices. EPIC pursued public release of these reports and related emails to understand why the FTC failed to bring an enforcement action action against the company. Today the FTC released to EPIC 89 emails between the FTC and Facebook from the years 2011, 2012, 2013, 2014, 2015, 2016, 2017, and 2018. In March 2018, following the Cambridge Analytica data breach, the FTC announced it was reopening the Facebook investigation. To date, there is still no announcement, no report, and no fine.
  • EPIC FOIA: Records Show DHS Ignored Privacy, First Amendment Threats of Media Monitoring Program » (Oct. 17, 2018)
    EPIC has obtained records concerning "Media Monitoring Services," a controversial DHS project to track journalists, news outlets, and social media accounts. The records, released in EPIC's FOIA lawsuit against the federal agency, reveal that the DHS bypassed the agency's own privacy officials and ignored the privacy and First Amendment implications of monitoring the coverage by particular journalists of a federal agency. As a result of EPIC's lawsuit, the agency previously admitted that it did not conduct a Privacy Impact Assessment for the program, as required by law. EPIC has successfully obtained several Privacy Impact Assessments, including for a related media tracking system (EPIC v. DHS) and for facial recognition technology (EPIC v. FBI). In EPIC v. Presidential Election Commission, EPIC challenged the Commission's failure to publish a Privacy Impact Assessment prior to the collection of state voter data.
  • EPIC FOIA: EPIC Obtains Secure Flight Documents » (Oct. 12, 2018)
    In response to EPIC's Freedom of Information Act request, the Transportation Security Administration has released records about Secure Flight, a program that compares airline passenger records with various watch lists. The documents provided to EPIC contain an interagency agreement between the TSA and Customs and Border Protection, as well as related documents about Secure Flight. During the processing of EPIC's request, the TSA destroyed over a hundred pages of responsive records "due to the records disposition schedule." EPIC has testified before Congress and published a "Spotlight on Surveillance" report about the Watchlist Program. For more information, see EPIC: Passenger Profiling, and EPIC: Air Travel Privacy.
  • In EPIC Suit, National Archives Identifies Thousands of Kavanaugh E-mails on Surveillance Programs » (Oct. 11, 2018)
    In EPIC's Freedom of Information Act suit, the National Archives has now identified thousands of additional records concerning Justice Kavanaugh's role in controversial White House surveillance programs, including warrantless wiretapping and the Patriot Act. These programs were later suspended, curtailed, or modified by Congress. The agency completed its second search of e-mails on Wednesday, in response to EPIC's case, and found that Kavanaugh received 183 messages from John Yoo, the architect of the warrantless wiretapping program. The Archives also found 1,988 e-mails concerning Kavanaugh and "surveillance" programs and the "Patriot Act" and 754 e-mails concerning Kavanaugh "CAPPS II" (passenger profiling), "Fusion Centers" (government surveillance centers), and the Privacy Act. The National Archives will eventually release these records to the public as a result of EPIC's lawsuit. Prior to nomination hearing, EPIC had warned that Kavanaugh, both as a White House legal advisor and then as a federal appellate judge, showed little regard for the constitutional privacy rights of Americans.
  • Inspector General Report: Airport Facial Recognition Faces Technical Problems » (Oct. 4, 2018)
    A Department of Homeland Security Inspector General report highlighted many challenges to facial recognition at airports. The problems of accurate biometric matches apply to all travelers, and particularly U.S. citizens. According to the Inspector General's report, "U.S. citizens accounted for the lowest biometric confirmation rate." A report obtained by EPIC last year through a Freedom of Information Act lawsuit revealed that iris imaging and facial recognition for border control did not perform at a "satisfactory" level. In a statement to Congress earlier this year, EPIC warned that biometric identification techniques are unreliable and lack proper privacy safeguards.
  • National Archives Confirms Existence of Numerous Kavanaugh Records on Surveillance Programs » (Oct. 3, 2018)
    In response to EPIC's Freedom of Information Act suit, the National Archives has now confirmed that there are hundreds of records concerning Brett Kavanaugh's role in controversial White House surveillance programs, including warrantless wiretapping and the Patriot Act. The programs were later suspended, curtailed, or modified by Congress. The communication to EPIC revealed that Kavanaugh sent 11 e-mails to John Yoo, the architect of warrantless wiretapping; 227 e-mails about "surveillance" programs and the "Patriot Act;" and 119 e-mails concerning "CAPPS II" (passenger profiling), "Fusion Centers" (government surveillance centers), and the Privacy Act. The National Archives has processed roughly 300,000 pages of Judge Kavanaugh's records between 2001 and 2003. These records will be released this month pending White House approval. EPIC has warned that Kavanaugh, both as a top-level White House aide and then as a federal appellate judge, has shown little regard for the Constitutional privacy rights of Americans.
  • EPIC Opposes OMB FOIA Regs that Block Access to Public Information » (Sep. 26, 2018)
    In comments to the Office of Management and Budget, EPIC opposed changes to FOIA regulations that would create obstacles to those seeking access to public information. EPIC urged the agency to remove changes that would delay FOIA requests, increase request costs, and reduce agency accountability. The proposed rules also conflict with the federal law and cases that favor disclosure over withholding. EPIC routinely comments on agency proposals that affect the rights of FOIA requestors. Several agencies, including the Federal Trade Commission, the Privacy and Civil Liberties Oversight Board, and the Defense Logistics Agency have adopted EPIC's recommendations on proposed FOIA rule changes.
  • EPIC Seeks Injunction to Compel Release of Kavanaugh Records » (Sep. 21, 2018)
    EPIC has filed a motion seeking a preliminary injunction against the National Archives to compel the release of Brett Kavanaugh’s White House records about warrantless surveillance and the Patriot Act. EPIC argues that these records are essential to understand Kavanaugh’s views on privacy, and must be released prior to the Senate votes on the Supreme Court nominee. EPIC explained that the agency has already missed deadlines established by the Freedom of Information Act. EPIC filed suit against NARA on September 17 after NARA failed to process EPIC’s two urgent Freedom of Information Act requests. EPIC earlier sent two letters to the Senate Judiciary Committee highlighting concerns about Kavanaugh’s role in the creation of the Patriot Act, his defense of warrantless wiretapping in the White House, and his troubling opinion as a judge in Klayman v. Obama, which justified the warrantless collection of phone records of all Americans.
  • EPIC FOIA Docs Show FBI and CBP Accessed "Hemisphere" Records » (Sep. 18, 2018)
    The Drug Enforcement Agency has released to EPIC a new FOIA production about the AT&T "Hemisphere" program. Hemisphere is a massive call records database made available to government agents by the nation's largest telecommunication company. AT&T discloses to the government billions of detailed customer phone records, including location data, without judicial review. The new release to EPIC reveals that both the FBI and CBP obtained access to these call details records. EPIC filed suit against the DEA in 2013 after the agency failed to respond to EPIC's FOIA request for information about the Hemisphere program. EPIC previously argued that the names of other agencies with access to Hemisphere records should be released. In June, the Supreme Court held in Carpenter v US that government access to location data is a search subject to Fourth Amendment review. EPIC filed an amicus brief in the Carpenter case.
  • EPIC Sues for Release of Kavanaugh White House Records on Warrantless Surveillance, Patriot Act » (Sep. 18, 2018)
    EPIC has filed a lawsuit to compel the National Archives and Records Administration to release Brett Kavanaugh's White House records about warrantless surveillance and the Patriot Act. EPIC's lawsuit follows the agency's failure to respond to EPIC's two urgent Freedom of Information Act requests. In the complaint, EPIC explains that timely release of these records is now essential to assess Kavanaugh's role in the White House surveillance programs. In Senate testimony, Kavanaugh claimed that he knew nothing about these programs, but documents indicate that he drafted President Bush's speech on the Patriot Act, communicated with John Yoo, the architect of the warrantless surveillance program, and defended suspicionless surveillance of the American public. Last week, EPIC sent a letter to the Senate Judiciary Committee urging postponement of the the committee vote on Kavanaugh until the documents EPIC requested are released. EPIC highlighted concerns about Kavanaugh’s White House years in an earlier letter to the Committee.
  • EPIC FOIA: EPIC Obtains Facebook Privacy Documents » (Sep. 12, 2018)
    In response to an EPIC Freedom of Information Act lawsuit, the Federal Trade Commission has released supplemental materials from the biennial Facebook audits (production 1, production 2, production 3, production 4). The audits were required by the FTC's 2011 Consent Order with Facebook. The documents include letters from the FTC to Facebook inquiring about Facebook's relationship with Instagram and telling the company that "whenever a corporate change such as an acquisition may affect the design and/or implementation of the Company's privacy program, the Company must notify the Commission." EPIC opposed Facebook's acquisition of WhatsApp and submitted comments for the FTC's review of the merger remedy process. FTC reopened its investigation into Facebook in March after EPIC, consumer groups urged action. The UK Information Commissioner completed its initial investigation, published report, and issued a fine in July. The FTC begins hearings this week on competition and consumer protection in the 21st century.
  • EPIC Settles Suit Against DHS regarding Communications with Election Commission » (Aug. 29, 2018)
    EPIC has settled a Freedom of Information Act lawsuit against the Department of Homeland Security that sought communications between the agency and the Presidential Election Commission. Through the lawsuit, EPIC obtained records showing that DHS communicated frequently with the Presidential Election Commission after EPIC sued to block the Commission's efforts to obtain state voter data. The records also revealed that Kirstjen Nielsen, now the DHS Secretary, worried that the Commission’s voter data grab would "disrupt critical efforts DHS is leading to work with state and local officials" on election cybersecurity. EPIC's separate lawsuit against the Presidential Election Commission led to the suspension of state voter data collection and ultimately to the complete destruction of the wrongfully collected data.
  • EPIC and Open Government Groups Urge Senate to Delay Hearing on Kavanaugh » (Aug. 27, 2018)
    EPIC along with a nonpartisan coalition of open government groups sent a letter to the Chair and Ranking Member of the Senate Judiciary Committee urging the Senate to delay hearings on Supreme Court nominee Brett M. Kavanaugh until all relevant records are released. In the letter, the groups stated, "Secrecy and selective availability of information continue to plague public confidence in the Senate's ability to conduct a fair and impartial review of Judge Kavanaugh's background and qualification." The groups urged the senators to work across party lines to ensure maximum transparency and protect the public's right to know. Judge Kavanaugh's confirmation hearing is currently scheduled for September 4, yet most of the records from his White House years have been withheld. Traditionally, the records of Supreme Court nominees who served in the White House are routinely made available prior to committee hearings. Earlier this month, EPIC submitted two urgent Freedom of Information Act requests for the records. At issue are concerns about Judge Kavanaugh's role in the warrantless wiretapping program and the secret expansion of the Patriot Act.
  • EPIC and Open Government Groups Urge Senate to Delay Hearing on Kavanaugh » (Aug. 27, 2018)
    EPIC along with a nonpartisan coalition of open government groups sent a letter to the Chair and Ranking Member of the Senate Judiciary Committee urging the Senate to delay hearings on Supreme Court nominee Brett M. Kavanaugh until all relevant records are released. In the letter, the groups stated, "Secrecy and selective availability of information continue to plague public confidence in the Senate's ability to conduct a fair and impartial review of Judge Kavanaugh's background and qualification." The groups urged the senators to work across party lines to ensure maximum transparency and protect the public's right to know. Judge Kavanaugh's confirmation hearing is currently scheduled for September 4, yet most of the records from his White House years have been withheld. Traditionally, the records of Supreme Court nominees who served in the White House are routinely made available prior to committee hearings. Earlier this month, EPIC submitted two urgent Freedom of Information Act requests for the records. At issue are concerns about Judge Kavanaugh's role in the warrantless wiretapping program and the secret expansion of the Patriot Act.
  • EPIC FOIA: EPIC Obtains Emails About White House AI Committee » (Aug. 22, 2018)
    Through a Freedom of Information Act request to the National Science Foundation, EPIC has obtained communications between the Office of Science and Technology Policy and the NSF about the White House's Select Committee on Artificial Intelligence. The Committee was announced earlier this year at the White House Artificial Intelligence Summit. In an e-mail Michael Kratsios, Deputy Assistant to the President for Technology Policy, stated that the summit was "well received by industry and academia" but makes no mention of the absence of public participation. The Committee's inaugural meeting in May was held in secret, and the OSTP has still not announced a plan for public participation. EPIC and leading scientific organizations, including AAAS, ACM, and IEEE, and technology experts petitioned the OSTP to solicit public comments on artificial intelligence policy. EPIC again argued for public participation in US AI policy in a recent statement to the Senate Commerce Committee.
  • Court Blocks EPIC's Efforts to Obtain "Predictive Analytics Report" » (Aug. 16, 2018)
    A federal court in the District of Columbia has blocked EPIC's efforts to obtain a secret "Predictive Analytics Report" in a FOIA case against the Department of Justice. The court sided with the agency which had withheld the report and asserted the "Presidential communications privilege." Neither the Supreme Court nor the D.C. Circuit has ever permitted a federal agency to invoke that privilege in a FOIA case. EPIC sued the agency in 2017 to obtain records about "risk assessment" tools in the criminal justice system. These techniques are used to set bail, determine criminal sentences, and even contribute to determinations about guilt or innocence. Many criminal justice experts oppose their use. EPIC has pursued several FOIA cases concerning "algorithmic transparency," passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. The case is EPIC v. DOJ (Aug. 14, 2018 D.D.C.). EPIC is considering an appeal.
  • EPIC FOIA: EPIC Obtains DOD Inspector General Audits of Hotline Allegations » (Aug. 15, 2018)
    Through a Freedom of Information Act request, EPIC has obtained the Department of Defense's Inspector General report on audit of hotline allegations involving improper use of agency funds for foreign counterintelligence billets. The report found that the Defense Intelligence Agency followed proper appropriation authorities but did not ensure proper function and management for the program. The Inspector General found that "employees were performing duties not aligned with their position descriptions and funding." In a 2012 FOIA case, EPIC v. CIA, EPIC uncovered an Inspector General's report which revealed that the CIA, in collaboration with the NYPD, conducted domestic surveillance of mosques, Muslim student groups, and Muslim stores and businesses. EPIC continues to pursue the release of government documents to improve oversight and accountability through litigation and EPIC's Open Government Project.
  • Two More Nominees for Intelligence Oversight Board » (Aug. 13, 2018)
    The White House announced the nomination of two board members to the Privacy and Civil Liberties Oversight Board (PCLOB). Travis LeBlanc is a partner at Boies Schiller, and former Federal Communications Commission Enforcement Bureau Chief. Aditya Bamzai is a law professor at the University of Virginia and former Department of Justice attorney. The intelligence oversight body has been unable to act due to long-term vacancies. The European Parliament has called for suspension of the Privacy Shield if the U.S. does not to improve data protection and restore the PCLOB. Three other members have been nominated but have yet to be confirmed. EPIC opposed the nomination of Adam Klein to serve as Chairman of the Board. EPIC previously testified before PCLOB, made recommendations for PCLOB's handling of FOIA requests, and set out a broad agenda for the work of the independent agency. EPIC previously sought public release of the PCLOB report on Executive order 12333.
  • Senator Feinstein Rebuts National Archives' Decision to Withhold Kavanaugh Records » (Aug. 8, 2018)
    Senator Feinstein has sent an urgent letter to Archivist David S. Ferriero demanding reconsideration of the National Archives' decision to withhold documents related to Supreme Court nominee Brett Kavanaugh. In the letter, Senator Feinstein stated that the "records are crucially important to the Senate's understanding of Mr. Kavanaugh's full record, and withholding them prevents the minority from satisfying its constitutional obligation to provide advice and consent on his nomination." Under the National Archives' unprecedented interpretation of the Presidential Records Act, Feinstein explained that "minority members of the Senate Judiciary Committee now have no greater right to Mr. Kavanaugh's records than members of the press and the public." EPIC recently submitted two urgent Freedom of Information Act requests for Judge Kavanaugh's records during the time he served in the White House when many of the post-September 11 mass surveillance systems were implemented.
  • Open Government Groups Call for Full Access to Kavanaugh Records » (Aug. 8, 2018)
    A coalition of nonpartisan open government groups has called for the disclosure of Supreme Court nominee Brett Kavanaugh's White House records. In a letter to the Senate Judiciary Committee, the coalition asserted that "curtailed document requests will hinder the Senate's ability to fully assess Judge Kavanaugh's background and qualifications..." To uphold the constitution, the coalition emphasized that "senators from both parties must have equal access to all documents relevant to a nominee, in as timely and complete a manner as possible." EPIC recently submitted two urgent Freedom of Information Act requests for Judge Kavanaugh's White House records during the time when many of the post-September 11 mass surveillance systems were implemented.
  • EPIC Opposes Citizenship Question on 2020 Census » (Aug. 8, 2018)
    In comments to the U.S. Census Bureau, EPIC opposed the agency's decision to add a citizenship question to the 2020 census. The administration's stated purpose for the question is to assist the DOJ, but EPIC argued that census data should never be used for enforcement purposes because collecting data to enforce laws will interfere with the census's constitutional purpose and will undermine the integrity of the census. The Bureau earlier conducted a Privacy Impact Assessment for the census, but it did not acknowledge the privacy risks raised by the recently added citizenship question. EPIC said the assessment does not meet the Commerce Department's standards and that it is required to conduct a revised assessment, analyzing the privacy risks created by the citizenship question. Through a Freedom of Information Act request, EPIC obtained documents (part 1, part 2, part 3, part 4) concerning Commerce Secretary Wilbur Ross and the citizenship question. The census raises significant privacy risks and was used to target Japanese-Americans for internment in World War II. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11. As a consequence of EPIC's lawsuit, the Census Bureau revised its policy on disclosing statistical information about "sensitive populations" to law enforcement and intelligence agencies.
  • Justice Department Releases 2018 FOIA Report » (Jul. 19, 2018)
    Today the Department of Justice released a summary and assessment of federal agencies' Chief FOIA Officer Reports. The annual FOIA Report provides a detailed assessment of FOIA processing across the federal government. The summary tracks the Department's FOIA Guidelines: Applying the Presumption of Openness, Having Effective Systems for Responding to Requests, Making Information Available Proactively, Utilizing Technology, and Reducing Backlogs and Improving Timeliness. The guidance offers methods to manage these backlogs, guidance on closing oldest consultations, and recommending that agencies post raw data from the annual FOIA reports. EPIC pursues an extensive FOIA docket.
  • EPIC FOIAs Commerce Department about Citizenship Question on 2020 Census » (Mar. 22, 2018)
    EPIC has submitted an urgent Freedom of Information Act request to the Department of Commerce seeking information about a proposed citizenship question on the 2020 census. Secretary Wilbur Ross stated today that the Department of Commerce will make a decision as to whether to include the controversial question in the 2020 census by March 31. Secretary Ross also said, “there are probably 15 or 20 different very complicated issues involved in the request.” EPIC specifically requested information about these issues. The census raises significant privacy risks. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11.
  • EPIC FOIA: EPIC Obtains FBI Policy for Disseminating Biometric Info » (Mar. 22, 2018)
    Through a Freedom of Information Act request, EPIC has obtained the FBI’s “Policy for Biometric Information Sharing with Domestic and International Agencies.” The documents EPIC obtained also contain details of the United States’ agreement with Iraq to exchange biometric data, including to not subject the information to any dissemination restrictions of the US or Iraq. The FBI maintains one of the world's largest biometric databases, known as the "Next Generation Identification” system, which includes facial IDs gathered from international conflicts. In 2007, EPIC, Privacy International, and Human Rights Watch warned the Secretary of Defense that the “system of biometric identification contravene international privacy standards and could lead to further reprisals and killings.” EPIC noted in 2010 "President Obama’s address on the end of the combat mission in Iraq has left open the question of what will happen to the massive biometric databases on Iraqis, assembled by the United States, during the course of the conflict."
  • EPIC Files FOIA Request About DHS's Investigation of Voter Fraud » (Feb. 9, 2018)
    EPIC filed a Freedom of Information Act request to the Department of Homeland Security seeking records about DHS's investigation of state voter fraud. Since the termination of the Presidential Advisory Commission on Election Integrity, President Trump suggested that the DHS investigate voter fraud, which falls outside the agency's jurisdiction. The agency has stated that its top priority is securing election systems from cyberattacks. This week, the DHS admitted that Russian hackers successfully penetrated election systems in the 2016 Presidential Election. EPIC had earlier submitted a statement to Congress seeking assurances that DHS will not continue the work of the disbanded Commission.
  • D.C. Circuit Sets Schedule for EPIC Case to Obtain Trump Tax Returns » (Dec. 19, 2017)
    The D.C. Circuit Court of Appeals has set a schedule in EPIC’s case to obtain President Trump’s tax returns. EPIC previously argued that the IRS has the authority to release the records to correct numerous misstatements of fact concerning financial ties to Russia, such as President Trump’s tweet "Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA - NO DEALS, NO LOANS, NO NOTHING." The IRS recently admitted to EPIC that it has used this authority at least 10 times in one year. The schedule for the appeal was announced the same week that Congress considers sweeping tax legislation, but Congress and the public remain in the dark about the consequences of the legislation on the President’s personal finances. According to CNN, 73% of Americans favor release of the President’s tax returns. EPIC v. IRS is one of several FOIA cases concerning Russian interference in the 2016 Presidential election, including EPIC v. ODNI (scope of Russian interference), EPIC v. FBI (response to Russian cyber attack), and EPIC v. DHS (election cybersecurity). EPIC’s opening brief in EPIC v. IRS is due January 24, 2018.
  • Court Rules California Police Can't Avoid Public Scrutiny of License Plate Reader Program » (Aug. 31, 2017)
    The California Supreme Court ruled that the mass, indiscriminate collection of license plate data by California police cannot be shielded from public scrutiny. In response to an open records request by EFF and the ACLU of Southern California, Los Angeles area law enforcement attempted to prevent disclosure by claiming all license plate data were "investigative records." The court ruled that the license plate data of millions of law-abiding citizens was not an "investigative record." The Court stated, "It is hard to imagine that the Legislature intended for the records of investigations exemption to reach the large volume of data that plate scanners and other similar technologies now enable agencies to collect indiscriminately." EPIC filed an amicus brief in the public records case stating, "Public scrutiny is essential to counter the unique threats posed by these programs of broad-scale surveillance." Documents obtained by EPIC about the FBI's use of license plate readers showed the agency failed to address the system's privacy implications.
  • EPIC Files FOIA Lawsuit Over Border Biometrics, Expanded Tracking » (Jul. 20, 2017)
    EPIC has filed a FOIA lawsuit against Customs and Border Protection for information about the agency’s deployment of a biometric entry/exit tracking system, including at US airports. Trump's recent Executive Order regarding immigration ordered the expedited implementation of a biometric entry/exit tracking system, which will include U.S. citizens. Biometric techniques, including facial recognition, lack proper privacy safeguards. EPIC previously sued the FBI over the Bureau’s Next Generation Identification database, which contains face prints, fingerprints, and other biometrics of millions of Americans. EPIC's lawsuit against the FBI revealed that biometric identification is often inaccurate.
  • Intelligence Agency Provides Non-Responsive Response in EPIC Lawsuit for Russia Report » (May. 3, 2017)
    The Director of National Intelligence has failed to provide a sufficient response in EPIC v. ODNI, concerning release of the report on the Russian interference in the 2016 Presidential election. The intelligence agency was required to release all “non-exempt portions" of the report to EPIC on May 3, 2017. However the agency withheld the entire document, refusing to provide even partial information that should have been released to EPIC under the Freedom of Information Act. As EPIC made clear in the complaint, “There is an urgent need to make available to the public the Complete ODNI Assessment to fully assess the Russian interference with the 2016 Presidential election and to prevent future attacks on democratic institutions.” EPIC will challenge the agency’s response as the litigation continues in federal district court in Washington, DC. EPIC v. ODNI is a part of the EPIC Cybersecurity and Democracy Project, which focuses on US cyber policies, threats to election systems and foreign attempts to influence American policymaking.
  • EPIC Sues IRS for Release of Trump's Tax Records » (Apr. 15, 2017)
    Today EPIC filed a FOIA lawsuit against the IRS after the agency failed to release Donald J. Trump’s tax records. According to EPIC, "There has never been a more compelling FOIA request presented to the IRS.” In the request to the IRS, EPIC explained that the IRS Commissioner may release tax returns to "correct misstatements of fact" and to ensure the “integrity and fairness" of the tax system. EPIC cited an earlier statement of Senator Charles Grassley (R-IA), a member of the Joint Committee on Taxation, in support of the release. The case is captioned EPIC v. IRS, 17-670 (D.D.C. filed Apr. 15, 2017). For more information, see the Press Release about EPIC v. IRS. EPIC is currently pursuing several high level FOIA cases, including EPIC v. FBI and EPIC v. ODNI, to determine the scope of Russian interference with the 2016 Presidential election.
  • EPIC Appeals Passenger Profiling Case to DC Circuit » (Apr. 7, 2017)
    EPIC has appealed the ruling in EPIC v. CBP, case involving a controversial passenger screening program that combines detailed personal information with secret algorithms to assign "risk assessments" to travelers—including US citizens. EPIC sued the agency for information about the "Analytic Framework for Intelligence" under the Freedom of Information Act. As a consequence of the EPIC FOIA lawsuit, EPIC obtained important documents and prevailed in an earlier phase of the case. However, the federal court in Washington, DC declined last month to order the release of certain additional materials. EPIC is now asking the DC Circuit Court of Appeals to overrule the lower court's decision and compel the release of documents sought by EPIC.
  • EPIC Appeals DOJ Response to "Neither Confirm nor Deny" FISA Order on Trump Tower » (Mar. 20, 2017)
    EPIC has appealed the DOJ’s decision to “neither confirm nor deny" the existence of a FISA application to monitor Trump Tower. Following tweets by the President alleging that President Obama "had [his] wires tapped in Trump Tower,” EPIC submitted an urgent FOIA request with the DOJ’s National Security Division for public release of any FISA applications for wiretapping Trump Tower. In response, the DOJ stated on Friday that "we can neither confirm nor deny the existence of records in these files responsive to your request." Yet, in today’s hearing before the House Select Committee on Intelligence, FBI Director James Comey stated that both the FBI and the DOJ had “no information to support those tweets.” EPIC has appealed the agency's response to the FOIA request, stating "Based on the FBI Director’s statement today... the agency may not hide behind the “neither confirm nor deny" response," and the "agency should immediately process EPIC’s FOIA Request." The heads of the Senate and House Intelligence committees have also publicly rejected the allegations, along with House Speaker Paul Ryan. EPIC will continue to press the DOJ for release of the information.
  • EPIC FOIA: DOJ will neither "confirm nor deny" existence of FISA Application for Trump Tower » (Mar. 18, 2017)
    In a letter to EPIC, the Department of Justice’s National Security Division stated it will neither "confirm nor deny" the existence of a FISA application to monitor Trump Tower. After the President has charged that President Obama "had [his] wires tapped in Trump Tower,” EPIC filed an urgent FOIA request with the DOJ for the public release of any applications filed under "FISA" for wiretapping Trump Tower. In response to EPIC’s FOIA request, the DOJ has stated, "we can neither confirm nor deny the existence of records in these files responsive to your request." EPIC will challenge the agency's determination. The Senate Select Committee on Intelligence released a bipartisan statement rejecting the allegations, and House Speaker Paul Ryan stated on Thursday they have "seen no evidence" of wiretapping. EPIC also filed a related request for five categories of FISA applications related to the alleged surveillance of the Trump team. The DOJ provided the same response to EPIC to that request.
  • EPIC FOIA: EPIC Seeks Information about Airport Eye Scans of U.S. Travelers » (Mar. 2, 2017)
    EPIC has filed an urgent FOIA request with U.S. Customs and Border Protection for details of eye scans conducted on U.S. citizens traveling internationally. The CBP has long been testing biometric identification of travelers, including U.S. citizens, and a recent report indicates U.S. citizens were subject to eye scans before traveling abroad. EPIC seeks public disclosure of the details of CBP policies for scanning U.S. citizen irises and retinas upon entry or exit to the U.S. EPIC makes frequent use of the Freedom of Information Act. As the result of a FOIA lawsuit, EPIC recently obtained several memorandum of understanding regarding the transfer of biometric identifiers between the FBI and DOD. Last month, EPIC also prevailed in EPIC v. FBI, a FOIA lawsuit public release of the FBI's privacy assessments.
  • EPIC Seeks Public Release of Secret Directive on Cybersecurity » (Jan. 28, 2017)
    EPIC has filed an urgent FOIA request with the DHS, the Department of Justice, and the NSA, seeking the expedited release of NSPD-1. The National Security Presidential Directive sets out procedures for cybersecurity "policy coordination, guidance, dispute resolution, and periodic in-progress review." EPIC has previously litigated, and successfully obtained, NSPD-54, a Presidential Directive concerning the NSA's authority to conduct surveillance within the United States.
  • Intelligence Director Removes Key Privacy Safeguards for Raw Intelligence » (Jan. 12, 2017)
    The Director of National Intelligence has announced new rules that permit intelligence agencies to disseminate "raw" signals intelligence without first removing or "minimizing" personal information. EPIC and other civil liberties groups opposed these changes in a letter last year to the Director, explaining that the changes would "fatally weaken existing restrictions on access to the phone calls, emails, and other data the NSA collects." The Director said that the new rules would "prohibit recipient elements from querying raw [intelligence] for a law enforcement purpose." But EPIC previously highlighted the risks of consolidating personal data in a FOIA lawsuit, EPIC v. ODNI, against the Director of National Intelligence.
  • Senate Armed Services Committee to Examine Foreign Cyber Threats » (Jan. 4, 2017)
    The Senate Armed Services Committee will hold a hearing on "Foreign Cyber Threats to the United States" on January 5, 2016. EPIC submitted a statement to the Committee to alert Senators about a pending Freedom of Information Act request. The EPIC FOIA request concerns the lax response of the FBI to the Russian interference with the 2016 Presidential election. EPIC wrote “we believe that the information that we are seeking from the FBI will also be helpful to the Senate Armed Services Committee as you investigate foreign cyber threats to the United States.”“Director of National Intelligence James Clapper, National Security Agency and Cyber Command Chief Adm. Mike Rogers and Undersecretary of Defense for Intelligence Marcel Lettre are scheduled to testify.
  • The Verge Features EPIC FOIA Docs on Secret Profiling System » (Dec. 21, 2016)
    In an article today, The Verge featured an EPIC Freedom of Information Act lawsuit about a controversial government data mining program, operated by the Department of Homeland Security. EPIC is seeking documents on the "Analytical Framework for Intelligence," a program that assigns "risk assessment" scores to travelers using data from sources including the Automated Targeting System, also operated by the DHS. Travelers "don't know how the scores are being generated and what the factors are," said EPIC FOIA Counsel, John Tran. "What if there's an error? Users should have an opportunity to correct the error, users should have an opportunity to understand what goes into generating the score." The case is currently pending before a federal judge in Washington, DC. EPIC expects to obtain more records on AFI. The FOIA case is also related to EPIC's ongoing work on "Algorithmic Transparency."
  • Open Government Lawsuits at Near-Record Highs in 2016 » (Dec. 9, 2016)
    Advocates, journalists, and businesses have brought a near-record 512 lawsuits under the Freedom of Information Act in 2016. The findings, complied by for FOIAproject.org by the Transactional Records Access Clearinghouse, show a 35 percent increase in FOIA litigation over the past five years. According to the new report, the lawsuits have covered diverse issues including "private email accounts, national security, immigration, the environment and even Donald Trump." In 2016, EPIC brought FOIA suits for the DOJ's secret inspector general reports, the DOT's drone task force records, and the FBI's biometric data transfer memos.
  • Report: Facial Recognition is Expansive, Unregulated; Coalition Calls for DOJ Review » (Oct. 18, 2016)
    EPIC and a coalition of civil liberties organizations urged the Justice Department to review the disparate impact of facial recognition. The letter follows a report on law enforcement use of the technology. The report builds on work pursued by EPIC and others. Freedom of Information Act documents obtained by EPIC showed that the DHS system lacked privacy safeguards, the FBI accepts a 20% error rate for its Next Generation Identification system and has agreements to run facial recognition searches on DMV databases. In 2012, EPIC urged the Federal Trade Commission to suspend the use of facial recognition techniques pending the establishment of legal safeguards. And the 2009 Madrid Privacy Declaration, authored by NGOs and privacy experts, calls for a moratorium on the face scanning technology.
  • Reuters: US Government Issued Secret Order to Yahoo to Scan All E-mails » (Oct. 4, 2016)
    Reuters reported today that Yahoo scanned the private email of Yahoo users pursuant to a secret directive issued by the FBI. The email scanning technique, based on a search for key terms, recalled a similar FBI program “Carnivore” that was found to capture far more information than authorized, according to documents obtained by EPIC under the Freedom of Information Act. The news report also renews concerns about the scope of US Internet surveillance.  The European Court of Justice struck down an EU-US data transfer deal last year, following revelations that US Internet firms collaborated with the NSA to enable mass surveillance.  A related case, Irish Data Protection Commissioner v. Facebook, is now pending. The Irish High Court has selected EPIC as "a friend of the court" to "counterbalance" the submission of the United States intelligence community.
  • EPIC FOIA: Google Secretly Attempted to Narrow FCC Privacy Protections, Exclude Customer IP Addresses » (Oct. 4, 2016)
    In response to a Freedom of Information Act request filed by EPIC, the Federal Communications Commission has released communications about the FCC’s broadband privacy rulemaking. One of the key proposals for the privacy rules concerns the scope of consumer data covered by the rule, such as a customer’s IP address. An email exchange between Google’s Vinton Cerf and FCC Chairman Tom Wheeler reveals Google’s backdoor efforts to narrow the scope of the proposed rules to exclude privacy protections for customers’ IP addresses. While EPIC has repeatedly argued that the FCC’s rules can and should go further, the current proposal would safeguard some consumer data, including IP addresses.
  • EPIC Celebrates International Access to Information Day » (Sep. 28, 2016)
    Today marks the first annual International Day for Universal Access to Information. This day celebrating the right to information—September 28th of every year—was established by the UN Education, Scientific, and Cultural Organization in a resolution last year. Freedom of information, declared UNESCO, "is an integral part of the fundamental right to freedom of expression," and is established as a right in the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. International efforts to promote the right to information have also produced the Open Government Partnership, a multilateral initiative to secure transparency commitments from governments. EPIC, as part of a coalition of transparency groups, has proposed recommendations to the US open government plan, as well as plans from US agencies.
  • Federal Agencies Unable to Measure FOIA Litigation Costs » (Sep. 9, 2016)
    In a new report the Government Accountability Office found that the Justice Department and other federal agencies are unable to determine how much they spend on defending Freedom of Information Act lawsuits. The watchdog agency found that of the 112 FOIA lawsuits decided between 2009 and 2012 in which the requester prevailed, agencies were able to calculate costs for only half, and estimated $1.4 million in costs. The GAO—which conducted the investigation in response to a request from Senators Chuck Grassley (R-IA) and Patrick Leahy (D-VT) of the Senate Judiciary Committee—urged Congress to explore the possibility of requiring agencies to track FOIA litigation costs. EPIC routinely litigates FOIA cases against federal agencies, and is currently fighting to obtain secret Inspector General reports  surveillance oversight reports, and details on the government’s largest-ever phone surveillance program
  • EPIC Opposes DHS Plan to Collect Social Media Identifiers » (Aug. 23, 2016)
    In comments to the Department of Homeland Security, EPIC urged the agency to drop a plan to review the social media accounts of people seeking to visit the U.S. EPIC argued that the proposal threatens important First Amendment rights, risked abuse, and would disproportionately impact against minority groups. Documents obtained by EPIC in 2011 in a Freedom of Information Act lawsuit revealed that the DHS gathered social media comments to identify individuals, including US citizens, critical of the agency and the government. A 2012 Congressional hearing, based on the documents obtained by EPIC, revealed bipartisan opposition to the original DHS social media monitoring program.
  • EPIC Sues for Release of Government Oversight Reports » (Jul. 5, 2016)
    EPIC has filed a FOIA lawsuit against the Department of Justice to obtain the agency’s secret watchdog reports. The mission of the Office of the Inspector General is “to detect and deter waste, fraud, abuse, and misconduct.” However, many of the reports are kept secret. Those reports, EPIC explained in the complaint, "are critical for the public to understand the measures taken to increase the efficiency and effectiveness of the DOJ, and as a mechanism to hold the agency accountable.” EPIC previously obtained oversight reports on the CIA surveillance of muslims in New York, and CIA spying on Senate staff.
  • President Obama Signs FOIA Reform Bill Into Law » (Jul. 1, 2016)
    Celebrating 50 years since enactment of the Freedom of Information Act, the Congress has passed, and the President has signed the FOIA Improvements Act of 2016. The Act creates a new portal for requesters, requires the proactive disclosure of frequently requested records, strengthens the Office of Government Information Services, and codifies the "Presumption of Openness" in the processing of requests for information about government. Senator Patrick Leahy (D-Vt.), a champion of open government, stated "Our founders had the revolutionary vision to create a government of, by, and for the people. Today we have helped strengthen that ideal." EPIC and many open government advocates urged the President to support these reforms. EPIC also established the website FOIA.ROCKS.
  • FOIA Ombudsman Recommends Changes to Use of "Still Interested" Letters » (Jun. 21, 2016)
    The FOIA ombudsman has issued the third part of a report on the use of "still interested" letters (part 1part 2). Such letters are used by federal agencies to prematurely terminate FOIA requests. In 2014, an EPIC-led coalition urged the Office of Government Information Services to investigate the pervasive use of such letters. Today’s report recognizes that this agency practice is "not addressed in the FOIA statute or in agency regulations,” and that reporting on the practice is inconsistent. The FOIA ombudsman  urged agencies to provide additional guidance on the use of such letters, and to document the practice in annual reporting. Congress recently passed legislation to strengthen the FOIA, which the President is expected to sign.
  • House to Consider Overdue FOIA Reform Bill » (Jun. 10, 2016)
    Congress is poised to take up a FOIA reform bill next Monday. The bill would require federal agencies to operate under a "presumption of openness" and places time limits on agency responses, improvements that EPIC has long supported. EPIC routinely uses the Freedom of Information Act to promote government oversight and agency accountability. July 4, 2016 will mark the 50th anniversary of the enactment of the FOIA.
  • EPIC FOIA: Secret Drone Task Force Ignored Privacy Concerns » (Jun. 9, 2016)
    second batch of previously secret documents show that the government’s secret drone task force ignored public concerns about drone surveillance. Included in the documents are opening remarks by FAA Administrator Michael Huerta, who urged the task force to take into consideration “the interests of all stakeholders,” but who declined to invite any privacy or consumer advocates to the closed door meetings. The newly released records stem from EPIC v. DOT, a lawsuit filed to uncover records relating to the private meetings held last November in Washington, DC between agency officials and industry representatives. EPIC expects to obtain more documents from the agency.
  • EPIC, Coalition Recommend Improvements to U.S. Open Government Plan » (May. 23, 2016)
    EPIC and a coalition of open government groups have urged the country’s trade agency to improve the open government plan for the United States. The coalition called on the United States Trade Representative to (1) make public the rules for trade negotiations, (2) publish comprehensive updates after each round of negotiation, and (3) appoint an independent transparency officer. EPIC and others also developed model Freedom of Information Act Regulations that would apply across the government.
  • Federal Court Strikes Down Obstacle to Student FOIA Requests » (May. 20, 2016)
    A federal appeals court has ruled that government agencies must give students who pursue Freedom of Information Act requests favorable fee treatment. The case involved a Ph.D. student who was charged $900 to process a FOIA request. The Department of Defense contended that students are not entitled to the favorable fee standards of “educational institutions." The D.C. Circuit disagreed and ruled today that “[s]tudents who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution.” In 2011, EPIC criticized the practice of charging students extra fees for FOIA requests, calling the government’s position “absurd.”
  • Justice Department Releases 2016 FOIA Reports » (May. 19, 2016)
    The Justice Department has released an assessment of the 2016 FOIA compliance reports. Every year, federal agencies prepare reports describing steps taken to implement President Obama's Memo and former AG Eric Holder's Guidelines. The DOJ grades FOIA compliance in five areas: applying the presumption of openness, effective and responsive systems, proactively releasing information, utilizing technology, and reducing backlogs and improving response times. The Senate recently passed by unanimous consent the Freedom of Information Improvement Act of 2015; the bill is now in the House. EPIC and other open government organizations have called on President Obama to strengthen the FOIA.

  • FOIA Ombudsman Releases First Part of "Still Interested" Report » (Apr. 27, 2016)
    In response to a letter from EPIC and open government advocates, the FOIA ombudsman has issued the first part of a report on the use of "still interested" letters by federal agencies. The DHS and other agencies have sent these letters to prematurely terminate FOIA requests. In 2014, an EPIC-led coalition urged the Office of Government Information Services to investigate the pervasive use of such letters. In today's report, OGIS found that there is no "guidance or standard for reporting requests that agencies close" through "still interested" letters, and that it does not yet understand the impact such letters have on FOIA requesters.
  • DHS, Federal Agencies Publish 2016 FOIA Reports » (Apr. 6, 2016)
    Most federal agencies, including the Department of Homeland Security, have now published the 2016 FOIA Reports. These annual reports, required by former Attorney General Holder's 2009 FOIA Memo, describe each agency's compliance with the FOIA, including steps to taken to improve processing and promote openness. The federal FOIA ombudsman is currently investigating the practices of six DHS component agencies in response to a 2015 letter from EPIC and open government advocates. EPIC and other have recently urged the President to support bipartisan legislation aimed at improving the FOIA.
  • EPIC Successfully Obtains Boater Tracking Documents, Settles Case with Homeland Security » (Mar. 28, 2016)
    After successfully obtaining nearly 2,500 pages of documents concerning a controversial boater tracking program, EPIC has settled a Freedom of Information Act lawsuit with the Department of Homeland Security about the "Nationwide Automatic Identification Systems." According to the documents released to EPIC, the DHS believes that boaters have "no expectation of privacy with regard to any information transmitted" about the location of their boats. The documents also reveal that the agency fuses tracking data with other government data to develop detailed profiles on boaters. EPIC did not objet to the use of NAIS for marine safety; the concern is government surveillance. EPIC has also opposed a DHS plan to collect and maintain records on sea travelers.
  • Senate Passes FOIA Reform Bill » (Mar. 16, 2016)
    The Senate has passed by unanimous consent the Freedom of Information Improvement Act of 2015. The bill, cosponsored by Senator Patrick Leahy (D-VT) and Senator John Cornyn (R-TX), requires federal agencies to operate under a "presumption of openness," and places time limits on the FOIA's Exemption 5. Senator Leahy said that the bill "will help open the government to the 300 million Americans it serves and ensure that future administrations place an emphasis on openness and transparency." The House passed a similar bill in January 2016. Differences between the two versions must now be reconciled before President Obama can sign the bill into law. EPIC and a coalition of open government advocates urged the President to support the bipartisan legislation.
  • EPIC Publishes 2016 FOIA Gallery » (Mar. 11, 2016)
    In celebration of Sunshine Week, a national recognition of public access to information, EPIC has unveiled the 2016 FOIA Gallery. Since 2001, EPIC has released annual highlights of EPIC's most significant open government cases. In 2015, EPIC obtained records on e-voting tests from the Department of Defense, a secret EU-US data transfer agreement, and a massive boater tracking program operated by the DHS. In the latest FOIA Gallery, EPIC also highlights the victory in EPIC v. DOJ a FOIA case concerning electronic surveillance reports, EPIC v. NSA about cyber surveillance, and EPIC's role as "friend of the court" in an open government case before the California Supreme Court.
  • European Commission Wrongly Denies EPIC's Request For "Privacy Shield" » (Feb. 26, 2016)
    The European Commission has wrongly denied EPIC's Freedom of Information request for the text of the "Privacy Shield." The Commission said the adequacy decision about Safe Harbor is "in preparation" and "negotiations with the U.S. are still ongoing." The Commission confused the text of the political agreement, known as "the Privacy Shield," with a legal determination about whether the agreement meets EU data protection law. EPIC will pursue public release of the Privacy Shield, which was previously announced, and then the release of the adequacy determination when it is final. EU and US Consumer and privacy organizations have opposed the agreement because it fails to provide adequate privacy protections.
  • EPIC FOIA - Information about Controversial DNA Forensic Technique Released » (Feb. 23, 2016)
    In response to EPIC's FOIA request, the California Department of Justice has released records on a controversial forensic technique. The records show that in 2014, the state agency spent more than $300,000 on STRMix, a secret technique for matching DNA. Investigators in Australia subsequently found an error in the STRMix code that produced incorrect results in 60 criminal cases, including a high-profile murder case. STRMix promises prosecutors the ability to "[c]arry out familial searches against a database, searching for close relatives of contributors to mixed DNA profiles" but the algorithm remains secret. EPIC is pursuing FOIA requests on the secret DNA matching algorithms with state agencies across the U.S.
  • Department of Commerce: Privacy Shield "does not exist" » (Feb. 10, 2016)
    As a response to EPIC's Freedom of Information request for the "Privacy Shield," the Commerce Department responded that "the record you requested does not exist." EU and US officials celebrated earlier this month that the EU and the US reached an agreement for transatlantic data transfers but they did not make the agreement public. Apparently there was nothing to make public since the agreement does not exist. The EPIC FOIA request is designated DOC-ITA-2016-000577.
  • EPIC v. DOJ: EPIC Prevails, DOJ Releases Secret EU-US Umbrella Agreement » (Jan. 25, 2016)
    After months of delay, the Department of Justice has finally released to EPIC the full text of the EU-US Umbrella Agreement. EPIC sued the DOJ last year after the agency failed to act on EPIC's FOIA request for the secret agreement. Today's release comes on the heels of EPIC's opposition to the agency's attempt to further delay the Agreement's release. The Umbrella Agreement outlines data transfers between EU and US law enforcement agencies, and is the basis for the Judicial Redress Act currently before Congress. EPIC has criticized the legislation, and recently urged the Senate to delay action on the bill until the DOJ releases the Umbrella Agreement and the Judiciary Committee holds a hearing on the legislation.
  • Amid Criticism of Agency Compliance, House Passes Substantial FOIA Reforms » (Jan. 11, 2016)
    Congress has passed the FOIA Oversight and Implementation Act, H.R. 653, which would limit exemptions that allow agencies to withhold public records, create an online portal for FOIA requests, and require agencies to post frequently requested documents. Open government advocates and members of Congress have criticized federal agencies for lax compliance with the Freedom of Information Act. The House Oversight Committee concluded that "[e]xcessive delays and redactions" have undermined the Act." The FOIA Ombudsman criticized the Transportation Security Administration for its "weak management" and lack of a "FOIA tracking system." EPIC has pursued many FOIA cases. EPIC and a coalition previously urged President Obama to strengthen the FOIA by committing to a "presumption of openness" and narrowing the use of FOIA exemptions.
  • EPIC Seeks Default Judgment in Umbrella Agreement Lawsuit » (Jan. 6, 2016)
    In its fight to obtain a copy of the EU-US Umbrella Agreement, EPIC asked a federal court in Washington, D.C. today to grant default judgment against the Department of Justice. EPIC sued the agency to obtain the secret agreement, which concerns the transfer of personal information between the EU and US. After the DOJ failed to answer EPIC's complaint, the court entered default against the agency. The Agreement is central to pending legislation, which the Senate Judiciary Committee is set to debate this month yet the DOJ has not made the document available to the public or to Members of Congress.
  • EPIC Urges OMB to Update Open Government Plan » (Dec. 21, 2015)
    EPIC and a coalition of transparency advocates urged the Office of Management and Budget to comply with President Obama's plan to promote open government. The OMB is expected to produce an open government plan, "describ[ing] how it will improve transparency." However, OMB Has failed to act even as the Administration has urged other governments to adopt similar plans. "The failure is particularly troubling," wrote the groups, "because OMB is an agency with a central oversight role on information policy, it has responsibility for implementation of this plan, and it often serves as the right hand of the President." EPIC and others previously called on President Obama to address weaknesses in open government administration and support FOIA reform.
  • Report on "Still Interested?" Letters Delayed Until 2016 » (Dec. 10, 2015)
    The federal FOIA Ombudsman informed EPIC that an investigation into the open government practices of the Department of Homeland Security won't be finished until March 2016. In 2014, EPIC and other open government advocates urged the Office of Government Information Services to investigate "still interested?" letters. The DHS has sent these letters to FOIA requesters to prematurely terminate open government requests. EPIC objected to the practice and explained that "no provision in the FOIA allows for administrative closures."
  • EPIC, Coalition Criticize Platform for Comments to Government » (Dec. 4, 2015)
    EPIC and a coalition of open government organizations submitted a letter to the Office of Management and Budget regarding revisions to Circular A-130, a government policy for access to information resources. The groups expressed concern about a poorly designed Internet service -- GitHub -- that created "new barriers to public participation in government decision-making." EPIC and its partners called on the OMB to "ensure meaningful public participation by notifying the public of opportunities to comment and accepting comments in other formats." EPIC frequently submits comments to state and federal agencies. OMB is accepting comments on A-130 through December 5.
  • EPIC to Receive More Documents in Boater Surveillance Case » (Nov. 24, 2015)
    This morning a federal judge in Washington, D.C. ordered the U.S. Coast Guard to release to EPIC, within sixty days, additional documents on the "National Automated Identification System,' a controversial boater tracking program that EPIC is investigating. According to documents previously obtained by EPIC, the Department of Homeland Security believes that boaters have "no expectation of privacy with regard to any information transmitted" on the Automated Identification System. The documents also reveal that the DHS fuses AIS data with other government data to develop detailed profiles on boaters. EPIC has previously expressed support for AIS to promote maritime safety, but warned that the NAIS system exceeds this purpose. In January, EPIC expects to receive contracts and privacy impact assessments that were previously withheld.
  • EPIC Obtains Documents on Secret DNA Forensic Source Code » (Nov. 10, 2015)
    In response to EPIC's state public records requests, Virginia and Pennsylvania have both released documents about "TrueAllele," a proprietary technique used in DNA forensic analysis. Virginia released to EPIC a validation study and validation summary prepared by the Virginia Department of Forensic Science. Pennsylvania produced purchase and service contracts, technical specifications, and user manuals for TrueAllele. Agencies in California, Louisiana, Pennsylvania, and Virginia have stated that they do not have access to the TrueAllele source code that they are using to produce evidence against defendants. EPIC's open government requests cited the importance of algorithmic transparency in the criminal justice system.
  • US Releases Updated Open Government Plan » (Nov. 5, 2015)
    The United States has released its Third Open Government National Action Plan, an initiative pursued by countries and NGOs participating in the Open Government Partnership. In response to recommendations proposed by EPIC and a coalition of civil society groups, the administration pledged to modernize implementation of the FOIA, streamline record declassification, and increase transparency of the intelligence community. The White House, however, failed to incorporate other recommendations such as publishing FISC opinions and pledging to limit the use of the FOIA's b(5) Exemption. EPIC and others previously called on President Obama to address weaknesses in open government administration and push for meaningful FOIA reform.
  • Senator Leahy Opposes FOIA Exemptions in Cyber Security Bill » (Oct. 27, 2015)
    Senator Patrick Leahy (D-VT) urged fellow Senators to remove a proposed open government exemption in a pending cybersecurity bill. The Cybersecurity Information Sharing Act (CISA), said Sen. Leahy, "contains an overly broad new FOIA exemption that is both unnecessary and harmful." Sen. Leahy called the FOIA "our nation's premier transparency law," and said that any modifications must go through the Senate Judiciary Committee. "The Senate must have an open and honest debate about the Senate Intelligence Committee's bill and its implications for Americans' privacy and government transparency," remarked the Senator. Last year, EPIC won a five-year court battle against the NSA for NSPD 54, the foundational legal document for U.S. cybersecurity policies. EPIC has also set out recommendations for FOIA reform.
  • EPIC Pursues Public Release of Secret DNA Forensic Source Code » (Oct. 14, 2015)
    EPIC has filed public records requests in six states to obtain the source code of "TrueAllele," a software product used in DNA forensic analysis. According to recent news reports, law enforcement officials use TrueAllele test results to establish guilt, but individuals accused of crimes are denied access to the source code that produces the results. A similar program used by New Zealand prosecutors was recently found to have a coding error that provided incorrect results in 60 cases, including a high-profile murder case. EPIC has previously urged the US Supreme Court to carefully consider the reliability of new investigative techniques and argued a federal appeals case against DNA dragnet surveillance. Citing the importance of algorithmic transparency in the criminal justice system, EPIC filed requests in California, Louisiana, New York, Ohio, Pennsylvania, and Virginia.
  • Government Gets Second Extension in EPIC Supreme Court Case about Cellphone Shutdown Policy » (Oct. 12, 2015)
    The US Supreme Court has granted the Solicitor General more time to respond to EPIC's charges that the government's effort to keep under wraps a controversial cellphone shutdown policy violates the law. EPIC has pursued public release of the government policy since BART subway officials shut down cellphone service during a peaceful protest in 2011. After EPIC prevailed in district court and a judge ordered release of the policy, the government appealed and a federal appeals court reversed. In the Supreme Court petition, EPIC argued that the was "contrary to the intent of Congress, this Court's precedent, and this Court's specific guidance on statutory interpretation." The government's response is now due on November 13.
  • EPIC Urges Homeland Security to Uphold the Public's Right to Know » (Sep. 29, 2015)
    On International Right to Know Day, EPIC submitted comments to the Department of Homeland Security, urging the agency to uphold the Freedom of Information Act. EPIC objected to several of the agency's proposals, including changes to the FOIA that would: (1) prematurely terminate FOIA requests; (2) withhold the names of agencies to which DHS may refer FOIA requests; and (3) increase open government fees for students conducting research. EPIC also supported several changes that will make it easier for the public to obtain information from the DHS. EPIC routinely comments on agency proposals that impact the rights of FOIA requesters.
  • EPIC celebrates International Right to Know Day » (Sep. 25, 2015)
    On September 28, EPIC celebrates International Right to Know Day and government transparency. EPIC has pursued numerous FOIA cases and routinely made the information obtained available to Congress and the public. EPIC recently filed a FOIA request to obtain the secret US-EU data transfer agreement. For more information, see EPIC Open Government. @EPICprivacy #FOISuccess #IRTKD2015
  • EPIC Recommends Changes to Judicial Redress Act » (Sep. 16, 2015)
    In a letter to the House Judiciary Committee, EPIC recommended changes to the Judicial Redress Act to provide meaningful protections for data collected on non-U.S. persons. The bill, also pending in the Senate, seeks to amend the federal Privacy Act. EPIC explained that the legislation under consideration fails to provide adequate protection to permit transborder data flows. EPIC also pointed to increasing public concern in the United States about failure to enforce the law. EPIC has previously recommended Congressional action to ensure adequate protections for all personal information collected by U.S. federal agencies. EPIC is also seeking public release of the text of the EU-US "Umbrella Agreement."
  • Congress Moves to Advance Judicial Redress Act as Secret Police Agreement is Leaked in Europe » (Sep. 15, 2015)
    A Congressional committee will this week consider endorsement of the Judicial Redress Act, after announcement of the just concluded EU-US "Umbrella Agreement." EPIC filed expedited an FOIA requests to obtain the text of the secret agreement. The document was since made available by Statewatch. EPIC will pursue official release of the Agreement from US and EU authorities to the public. Regarding amendments to the Privacy Act, EPIC has made extensive recommendations for Privacy Act modernization, including specific changes to the damages provision that would correct a Supreme Court holding and address such problems as the OPM data breach.
  • EPIC Pursues Public Release of EU-US Agreement on Data Transfers » (Sep. 10, 2015)
    EPIC has filed an expedited FOIA request to obtain a secret agreement between US and EU law enforcement agencies concerning the transfer of personal data. Citing legislation pending in Congress and NGO concern about the scope of the data protection safeguards, EPIC said "there is an urgency to inform the public" about the contents of the agreement. EPIC has pursued numerous FOIA cases and routinely made the information obtained available to Congress and the public. The agency has 10 days to respond to EPIC's request about the law enforcement "umbrella agreement."
  • Following EPIC Complaint, FOIA Ombudsman Announces Investigation of Practices at DHS » (Aug. 28, 2015)
    The federal FOIA ombudsman has informed EPIC that it is investigating the FOIA practices of six DHS component agencies. In 2014, EPIC and a dozen open government organizations urged the Office of Government Information Services to investigate the impermissible closures of FOIA requests. Through "still interested" letters, some federal agencies notify FOIA requesters that unprocessed requests will be closed by the agency if there is no further communication. EPIC and the open government groups object to the practice and reminded OGIS that "no provision in the [FOIA] allows for administrative closures." An earlier EPIC letter to OGIS led to a reduction of fee payments for FOIA requesters.
  • State Department and Homeland Security Propose Open Government Rules » (Aug. 3, 2015)
    The State Department and the Department of Homeland Security have each proposed to amend their Freedom of Information Act programs. Both agencies propose several favorable changes to their FOIA programs, including more circumstances in which the agencies would expedite processing for open government requests. The agencies are currently accepting public comments on their proposals until September 28. EPIC recently submitted extensive comments to the Defense Department, opposing several of the agency's plans to amend its FOIA program. EPIC routinely comments on FOIA rulemakings and has had past success with the Justice Department, Federal Trade Commission, and several other federal agencies.
  • Open Government Groups Oppose Proposed FOIA Exemptions » (Jul. 27, 2015)
    Over the weekend, several open government groups urged Sen. Mitch McConnell (R) and Sen. Harry Reid (D) to remove proposed FOIA "b(3)" exemptions from a pending transportation bill. The exemptions would exclude public access to information about safety audits, trucking company safety scores, accident footage, and records related to hazardous train service. The groups oppose the exemptions and also explained that such proposals should be reviewed by the Senate Judiciary Committee which is responsible for FOIA oversight. EPIC previously set out recommendations for FOIA reform.
  • Justice Department Releases 2015 FOIA Reports » (Jul. 23, 2015)
    The DOJ has released its assessment of federal agencies' 2015 FOIA compliance reports. Every year, agencies submit reports to the Justice Department describing their progress in implementing President Obama's Memo and former AG Eric Holder's Guidelines to promote FOIA compliance. The DOJ grades progress in five areas: applying the presumption of openness, effective and responsive systems, proactively releasing information, utilizing technology, and reducing backlogs and improving response times. EPIC and other open government organizations have called on President Obama to strengthen the FOIA.
  • Justice Department Issues Guidance on "Administrative Closures" for FOIA Requests » (Jul. 7, 2015)
    The Department of Justice has told federal agencies to continue processing FOIA requests after EPIC and many FOIA groups objected to the practice of "administrate closures." The Department advised agencies to limit administrative closures of FOIA requests and to provide "reasonable grounds" for ending processing. The Department also said agencies should provide requesters at least 30 days to respond to a proposal to end processing of a FOIA request. In 2014 EPIC and a dozen open government organizations stated that "no provision in the [FOIA] allows for administrative closures . . ."
  • EPIC Pursues Documents about Secret Government Profiling Program » (Jul. 1, 2015)
    EPIC has filed papers in federal court challenging the government's claim that it can withhold information about automated profiling. In EPIC v. CBP, a Freedom of Information Act case, EPIC seeks documents about the "Analytical Framework for Intelligence" which incorporates personal information from government agencies, commercial data brokers, and the Internet. The agency then uses secret, analytic tools to assign "risk assessments" to travelers, including U.S. citizens traveling solely within the United States. EPIC has called for "algorithmic transparency" in automated decisions concerning individuals.
  • EPIC Obtains Documents on "Violent Intent Modeling and Simulation" Program » (Jun. 9, 2015)
    Pursuant to a FOIA request, the DHS has released to EPIC the first set of documents about a new pre-crime detection program. The so-called "Violent Intent Modeling and Simulation" Program attempts to predict violent behavior based on public record information. EPIC previously uncovered documents about the DHS's Future Attribute Screening Program, another pre-crime initiative. "Minority Report," a 2002 film starring Tom Cruise, also explored the topic of pre-crime detection.
  • EPIC Sues Drug Enforcement Administration For Release of Privacy Assessments » (May. 1, 2015)
    EPIC has filed a Freedom of Information Act lawsuit to obtain details about the Drug Enforcement Administration’s surveillance programs. The agency is required to publish privacy impact assessments for its data collection programs. However, the agency has failed to make available privacy impact assessments for many of its programs, including the massive cell phone metadata program "Hemisphere" and a nationwide license plate reader program. EPIC has a related lawsuit against the Federal Bureau of Investigation for that agency’s privacy impact assessments for several programs including "Next Generation Identification."
  • DHS Defends Government Secrecy in "Internet Kill Switch" Case » (Apr. 28, 2015)
    The Department of Homeland Security has filed a brief in response to EPIC's petition for rehearing in the "Internet Kill Switch" case. EPIC is seeking the release of the public policy that allows the government to suspend cell phone service. The D.C. Circuit previously ruled that DHS may withhold the policy. EPIC pursued the shutdown policy after government officials disabled cell phone service during a peaceful protest in San Francisco. EPIC cited both free speech and public safety concerns and noted that the policy was never subject to public rule making. The Federal Communications Commission recently warned government agencies not to use "jammers," devices that block cell phone signals, because of public safety risks.
  • Drug Enforcement Agency Gathered Telephone Records on Millions of Americans » (Apr. 8, 2015)
    According to USA Today the Drug Enforcement Agency has engaged in a secret telephone record collection program involving Americans for many years. The federal agency collected the telephone call records of Americans for nearly a decade before September 11. Government officials told USA Today that the program was discontinued in 2013, but documents obtained by EPIC indicate that the DEA program "Hemisphere" is ongoing. EPIC is pursuing a Freedom of Information Act lawsuit, EPIC v. DEA, to obtain further details about the DEA's bulk collection activities. EPIC is also pursuing related suits against the National Security Agency and the Department of Justice concerning metadata collection.
  • Department of Justice Adopts Improved FOIA Rule » (Apr. 3, 2015)
    In response to extensive comments by EPIC and the Sunlight Foundation, the Department of Justice has issued an improved final rule that will govern the agency's Freedom of Information Act practices. The initial rule would have made it difficult for FOIA requesters to obtain favorable fee status, created new obstacles to open government, and reduced agency oversight. The final rule adopted by the agency incorporates nearly all of EPIC's recommendations, including provisions that help ensure accountability, access, and favorable fee status for news media and educational requesters. EPIC routinely comments on agency FOIA rulemakings, and has had past success with the Federal Trade Commission, Privacy and Civil Liberties Oversight Board, and other federal agencies.
  • Court Orders Government to Respond to EPIC's Petition in Case Over Cell Phone Shutdown Policy » (Apr. 3, 2015)
    The federal appeals court in Washington, DC, has ordered DHS to respond to EPIC's petition to reconsider a recent decision allowing the federal agency to withhold the criteria for shutdown of cell phone networks. EPIC sued the DHS for the policy following a 2011 San Francisco BART incident, when government officials shut down cell phone service during a peaceful protest. EPIC argued that the recent decision would "create an untethered national security exemption for law enforcement agencies," and is contrary to other court decisions and the intent of Congress. The appeals court has determined that the government must respond to EPIC's petition.
  • EPIC Pursues Investigation of FTC's 2012 Investigation of Google » (Mar. 26, 2015)
    EPIC has filed a FOIA request with the Federal Trade Commission, reopening a 2013 FOIA request from EPIC regarding the Commission's Google antitrust investigation. After the agency closed the investigation in 2013, EPIC asked for agency communications with the White House. The FTC denied having any such records. Now, the Wall Street Journal has reported that the Chairman of the FTC attended White House meetings on the same day as Google lobbyists. EPIC also filed a request this week for the FTC staff reports recommending that the agency file an antitrust lawsuit against Google.
  • EPIC Partially Prevails in FOIA Case, Wikileaks Investigation Ongoing » (Mar. 5, 2015)
    A federal judge has granted in part EPIC's motion for summary judgment in a FOIA case about the government's surveillance of Wikileaks supporters. Three divisions of the Justice Department - the FBI, the National Security Division, and the Criminal Division - failed to provide any documents in response to EPIC's FOIA request. The FBI stated that there was no surveillance of supporters and that an investigation was ongoing. Judge Rothstein sided with the FBI and the Criminal Division, but held that the National Security Division had failed to justify its withholdings.
  • Senators Seek Answers on Use of Cell Phone Surveillance Devices » (Jan. 2, 2015)
    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) have asked Attorney General Eric Holder and Secretary of Homeland Security Jeh Johnson several questions about the government’s use of cell site simulators or “Stingray” devices to track cell phones. According to the letter, the Senators previously asked FBI Director James Comey about the FBI’s use of cell site simulators and, after two briefings with the Senators, the FBI announced a new policy that it would obtain search warrants before using the devices, subject to certain exceptions. The new letter raises questions about the broader use of cell site simulators by other law enforcement agencies and their impact on the privacy of innocent individuals. EPIC filled a lawsuit under the Freedom of Information Act in 2012, seeking information about the FBI’s use of cell site simulators and, in particular, what legal process the agency required before deploying the technology. As a result of EPIC’s lawsuit, more than 4,000 pages of partially-redacted FBI records were released to the public. For more information, see EPIC v. FBI - Stingray / Cell Site Simulator.
  • Leahy FOIA Reform Bill Passes in Senate » (Dec. 9, 2014)
    The Senate has unanimously passed the Freedom of Information Improvement Act of 2014. (Outline of bill.) The bill, cosponsored by Senator Patrick Leahy (D-VT) and Senator John Cornyn (R-TX), requires Federal agencies to operate under a "presumption of openness." "The FOIA Improvement Act will help open the government to all Americans by placing an emphasis on openness and transparency, rather than allowing agencies simply to hide behind exemptions," Leahy and Cornyn said in a joint statement. The FOIA Improvement Act will also close a loophole that agencies have used to make requesters pay excessive fees, even when the agency takes years to process the request. EPIC has recommended many of these reforms, including changes to the "(b)(5)" exemption for agency memos. The bill goes next to the House for consideration. For more information, see EPIC: FOIA and FOIA.ROCKS.
  • EPIC Pursues Information About "Hemisphere," Massive Phone Record Database » (Dec. 3, 2014)
    EPIC has filed a motion for summary judgment in a Freedom of Information Act lawsuit against the Drug Enforcement Administration. More than a year ago, EPIC sought documents from the agency concerning "Hemisphere," a massive AT&T call records database available to government agents. EPIC asked for the legal basis and privacy impact of the program. After the agency failed to respond to the request, EPIC filed a lawsuit. The DEA then produced several hundred pages of records. However, almost all were entirely redacted. EPIC now contends that the agency has failed to comply with the law. For more information, see EPIC: EPIC v. DEA - Hemisphere and EPIC: Freedom of Information Act.
  • EPIC FOIA Case - Army Blimps over Washington Loaded with Surveillance Gear, Cost $1.6 Billion » (Aug. 29, 2014)
    EPIC has received substantial new information about the surveillance blimps, now deployed over Washington, DC. The documents were released to EPIC in a Freedom of Information Act lawsuit against the Department of the Army. The documents also reveal that the Army paid Raytheon $1.6 billion. EPiC will receive more documents about the controversial program In October. For more information, see EPIC: EPIC v. Army - Surveillance Blimps and EPIC: Freedom of Information Act Litigation.
  • DC Circuit Rules for EPIC in Case Against NSA, Vacates Lower Court Ruling That Secret Order Is Not Subject to FOIA » (Jul. 31, 2014)
    The U.S. Court of Appeals for the D.C. Circuit ruled in favor of EPIC today in a Freedom of Information Act case seeking the full text of National Security Presidential Directive 54, a previously-secret Presidential order granting the government broad authority over cybersecurity matters. EPIC successfully obtained the Directive from the NSA, and the DC Circuit has vacated the lower court’s Fall 2013 ruling that NSPD-54 was not an “agency record” subject to the FOIA. The Directive also includes the Comprehensive National Cybersecurity Initiative and evidences government efforts to enlist private sector companies to assist in monitoring Internet traffic. EPIC has several related FOIA cases against the NSA pending in federal court. For more information, see EPIC v. NSA: NSPD-54 Appeal and EPIC: Freedom of Information Act Cases.
  • Senators Leahy and Cornyn Introduce FOIA Reform Bill » (Jun. 25, 2014)
    A bipartisan Freedom of Information Act reform bill was introduced today by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX). The FOIA Improvement Act of 2014 addresses chronic problems with overuse of exemptions by federal agencies, excessive fee assessments, and the culture of secrecy. The bill will codify a "presumption of openness" in the processing of FOIA requests. The bill will require agencies to weigh the public interest in disclosure against the agency’s interest in secrecy before withholding documents such as Office of Legal Counsel memos. The FOIA Improvement Act will also close a loophole that agencies have used to make requesters pay excessive fees, even when the agency takes years to process the request. EPIC has recommended many of these reforms. EPIC specifically recommended proposed changes to the "(b)(5)" exemption. For more information see: EPIC: FOIA Cases.
  • EPIC Open Government Director Appointed to FOIA Advisory Committee » (Jun. 6, 2014)
    EPIC Open Government Project Director Ginger McCall has been appointed to the federal government's Freedom of Information Act (FOIA) Modernization Committee. The Committee's goal is to advise on ways to improve the administration of FOIA. It will have 20 members - 10 from within government and 10 from outside of government - and will chaired by Office of Government Information Services director Miriam Nisbet. The first meeting of the Committee will be held at the National Archives and Records Administration in Washington, DC on June 24, from 10:00AM to 1:00PM. For more information see: NARA: Modernizing FOIA and EPIC: FOIA Cases.
  • EPIC Publishes 2014 FOIA Gallery, Highlights Documents Obtained Under Open Government Law » (Mar. 17, 2014)
    In celebration of Sunshine Week, EPIC has published the 2014 EPIC FOIA Gallery. The gallery highlights documents obtained by EPIC in the past year, such as previously secret records about government surveillance of telephone calls, FBI facial recognition technologies, DHS drones that identify human targets on the ground, the CIA's collaboration with the New York Police Department, and student debt-collectors' lax data security systems. In many of these cases, EPIC "substantially prevailed" and obtained attorneys fees. EPIC routinely pursues Freedom of Information Act matters to promote government accountability. EPIC published the first FOIA Gallery in 2001. EPIC also publishes an authoritative FOIA litigation manual. For more information, see EPIC: Open Government and EPIC Bookstore: FOIA.
  • DHS Appeals Ruling in EPIC's "Internet" Kill Switch Case » (Jan. 13, 2014)
    The Department of Homeland Security has appealed a ruling for EPIC in a Freedom of Information Case involving Standard Operating Procedure 303, a protocol which describes the government's plan for deactivating wireless communications networks. Seeking information about the First Amendment and public safety implications of the protocol, EPIC filed a FOIA lawsuit against the agency. A federal court ruled that the protocol could not be withheld under the FOIA because it was not an investigative technique and DHS had not established that releasing the document would cause harm to any individual. Therefore, the court concluded, the documents EPIC sought should be turned over. The Department of Justice has now appealed that decision to the D.C. Circuit Court of Appeals. For more information, see EPIC: EPIC v. DHS (SOP 303) and EPIC: FOIA.
  • EPIC Files FOIA Request with FTC About Facebook Investigation » (Nov. 19, 2013)
    EPIC filed a Freedom of Information Act request with the Federal Trade Commission for documents concerning the FTC's recent "investigation" of Facebook's policy changes. The investigation concerned changes to Facebook’s Data Use Policy that permit the use of the names, images, and content of Facebook users for commercial endorsement without user consent. Following announcement of the proposed change, EPIC and several several privacy groups wrote to the FTC objecting to the changes as a violation of a 2011 consent order with Federal Trade Commission. Senator Markey also expressed concern about the policy changes. The Commission opened an investigation which was then quietly closed allowing Facebook to go forward with the changes. For more information, see EPIC: Federal Trade Commission and EPIC: FOIA.
  • EPIC Prevails in FOIA Case About "Internet Kill Switch" » (Nov. 12, 2013)
    In a Freedom of Information Act case brought by EPIC against the Department of Homeland Security, a federal court has ruled that the DHS may not withhold the agency's plan to deactivate wireless communications networks in a crisis. EPIC had sought "Standard Operating Procedure 303," also known as the "internet Kill Switch," to determine whether the agency's plan could adversely impact free speech or public safety. EPIC filed the FOIA lawsuit in 2012 after the the technique was used by police in San Francisco to shut down cell service for protesters at a BART station, who had gathered peacefully to object to police practices. The federal court determined that the agency wrongly claimed that it could withhold SOP 303 as a "technique for law enforcement investigations or prosecutions." The phrase, the court explained, "refers only to acts by law enforcement after or during the prevention of a crime, not crime prevention techniques." The court repeatedly emphasized that FOIA exemptions are to be read narrowly. For more information, see EPIC: EPIC v. DHS (SOP 303) and EPIC: FOIA.
  • EPIC Comments on FTC's FOIA Procedures » (Apr. 4, 2013)
    EPIC has submitted comments to the Federal Trade Commission, supporting several of the agency's changes to its FOIA regulations. EPIC applauded the agency for reducing fees for requesters. EPIC also urged the Committee to: (1) update its definition for news media representative; (2) clarify which documents are public information and ensure that hyperlinks to those records work properly; (3) disclose private sector contract rates for FOIA processing; (4) refrain from prematurely closing FOIA requests; and (5) adopt alternative dispute resolution or arbitration when resolving delinquent FOIA fees. EPIC routinely comments on agency proposals that impact the rights of FOIA requesters. Last year, EPIC submitted extensive comments to theDepartment of Defense, warning the agency not to erect new obstacles for FOIA requesters. For more information, see EPIC: Open Government.
  • EPIC Publishes 2013 FOIA Gallery, Highlights Documents Obtained Under Open Government Law » (Mar. 12, 2013)
    In celebration of Sunshine Week, EPIC has published the 2013 EPIC FOIA Gallery. The gallery highlights key documents obtained by EPIC in the past year, such as previously secret documents about cell phone traffic monitoring, domestic drones that identify human targets and intercept electronic communications, Google's interception of WiFi transmissions, DHS monitoring of Twitter, technology that can scan crowds at a molecular level, and the government's use of license plate datas. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of government documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more information, see EPIC: Open Government and EPIC Bookstore: FOIA.
  • EPIC Thanks Congress for FOIA Oversight, Calls for Renewed Attention to Transparency » (Feb. 20, 2013)
    EPIC, along with more than 40 transparency organizations, thanked the House Committee on Oversight for sending a letter to the Department of Justice about the importance of the Freedom of Information Act. The open government organizations said "outdated FOIA regulations, excessive fee assessments, growing FOIA backlogs, and the misuse of exemptions are issues that continually frustrate FOIA requesters" and expressed hope that the Committee would share the Department of Justice's responses with the public. EPIC also joined more than two dozen transparency groups in a letter to President Obama, asking him to renew his commitment to transparency and FOIA. The President issued a memorandum on Transparency and Open Government in 2009.For more information see: EPIC: Open Government.
  • Congress Challenges Justice Department Commitment to Open Government » (Feb. 7, 2013)
    In a letter to the director of the Office of Information Policy, a Congressional oversight committee has asked a series of question, challenging the government's compliance with the FOIA. The Office of Information Policy is tasked with "encouraging agency compliance with the Freedom of Information Act (FOIA) and for ensuring that the President's FOIA Memorandum and the Attorney General's FOIA Guidelines are fully implemented across the government." The letter from Chairman Issa (R-CA) and Ranking Member Cummings (D-MD) called on the Justice Department to address concerns about "outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services." EPIC makes frequent use of the FOIA to obtain information from the government about surveillance and privacy policy. EPIC has also raised concerns in comments to federal agencies and to the Office of Government Information Services about systemic problems with FOIA compliance. For more information, see EPIC: Open Government and EPIC: FOIA Litigation Docket.
  • EPIC Succeeds in Fight Against Protective Order in FOIA Case » (Jan. 9, 2013)
    A federal judge has vacated provisions in a prior order that would have limited the ability of FOIA requesters to disseminate information to the public. EPIC filed a Freedom of Information Act lawsuit against the Department of Homeland Security after the agency failed to respond to a request for documents about a plan to monitor internet traffic. In arguments before the court, the Department of Justice contended that EPIC should agree to a protective order that would prevent EPIC from disclosing documents obtained in the case. EPIC challenged this argument, stating that it was contrary to FOIA law and that the use of protective orders in FOIA cases would make it more difficult for the public to obtain information about government activities. Judge Kessler agreed with EPIC and discarded the protective order requirement. She also chastised the agency for its repeated delays in processing EPIC's FOIA request. The case is EPIC v. DHS, 12-333. For more information see: EPIC v. DHS - Defense Contractor Monitoring.
  • EPIC Obtains Documents on NSA's "Perfect Citizen" Program » (Jan. 2, 2013)
    The NSA has turned over documents on the controversial "Perfect Citizen" program to EPIC in response to a FOIA request. "Perfect Citizen" is an NSA program that monitors private networks in the United States. The redacted documents obtained from the federal agency by EPIC state that "[t]he prevention of a loss due to a cyber or physical attack [on Sensitive Control Systems, like large-scale utilities], or recovery of operational capability after such an event, is crucial to the continuity of the [Department of Defense] , the [Intelligence Community], and the operation of SIGNIT systems." The NSA claims that Perfect Citizen is merely a research and development program. The documents obtained by EPIC suggest that the program is operational. For more information, see EPIC: Perfect Citizen.
  • UPDATED: EPIC Appeals NSA's Withholding of Cybersecurity Directive » (Nov. 27, 2012)
    EPIC has appealed a decision by the National Security Agency to deny EPIC's Freedom of Information Act Request for the public release of Presidential Policy Directive 20. The Policy Directive expands the NSA's cybersecurity authority and has raised concerns about government surveillance of the Internet. EPIC's FOIA appeal points to numerous substantive and procedural defects in the NSA's response, and highlights the importance of public discussion of cyber security authority. The NSA has ten days to respond to EPIC's appeal. For more information, see EPIC: Cybersecurity Privacy Practical Implications, EPIC: EPIC v. NSA - Cybersecurity Authority.
  • EPIC Urges the Interior Department to Preserve Strong Open Government Rules » (Nov. 14, 2012)
    In comments the Department of the Interior, EPIC has urged the federal agency not to weaken the Freedom of Information Act (FOIA) as it has proposed. The Interior Department is considering regulations that would place new burdens on FOIA requesters by: (1) terminating FOIA requests, (2) denying FOIA requests without providing justifications as required by law, and (3) withholding the identity of agencies to which the Department refers FOIA requests. EPIC said that the Interior Department's proposal would undermine the open government law, is contrary to law, and the views expressed by the President and the Attorney General about the FOIA. EPIC routinely comments on agency proposals that impact the rights of FOIA requesters. In 2011, EPIC submitted extensive comments to the Department of Justice, warning the agency not to erect new obstacles for FOIA requesters. For more information, see EPIC: Open Government.
  • EPIC FOIA Cases Move Forward in Federal Court » (Oct. 18, 2012)
    Federal judges have recently issued orders compelling government agencies to produce documents in two open government cases pursued by EPIC. In EPIC v. Office of Director of National Intelligence, 12-1282, EPIC is seeking information about a plan to integrate databases across the federal government, without the legal safeguards typically in place for personal data held by government agencies. (EPIC press release). In response to the EPIC FOIA lawsuit, a federal judge has ordered the agency to disclose the procedures it has established to safeguard privacy rights. In EPIC v. DHS, 12-333, EPIC is L6[seeking documents] about the monitoring of the Internet that some Justice Department officials believe may "run afoul of privacy laws forbidding government surveillance of private Internet traffic." The government sought a 16 month extension. The court has ordered the agency to start producing documents in the next month. For more information, see EPIC - Open Government.
  • Appeals Court Hears Arguments in Open Government Case » (Oct. 16, 2012)
    The DC Circuit Court of appeals today considered arguments in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, concerning an agency's failure to comply with statutory obligations to process a Freedom of Information Act request. EPIC joined with Public Citizen and several other prominent open government organizations in an amicus brief supporting CREW's appeal. The open governments group argued that the FEC's practice conflicts with the plain language of the Freedom of Information of Act and would wreak havoc on open government. For more information, see EPIC, Open Government.
  • EPIC FOIA Uncovers Google’s Privacy Assessment » (Sep. 28, 2012)
    Through a Freedom of Information Act request to the Federal Trade Commission, EPIC has obtained Google's initial privacy assessment. The assessment was required by a settlement between Google and the FTC that followed from a 2010 complaint filed by EPIC over Google Buzz. The FTC has withheld from public disclosure information about the audit process, procedures to assess privacy controls, techniques to identify privacy risks, and the types of personal data Google collects from users. EPIC intends to challenge the agency withholdings. For more information, see EPIC: Federal Trade Commission, EPIC: Google Buzz, and EPIC: Open Government.
  • EPIC and Others Ask Supreme Court to Review Controversial State FOI Law » (Aug. 30, 2012)
    EPIC, and several other leading open government organizations, have filed an amicus brief in support of a petition for Supreme Court review challenging the Virginia Freedom of Information law, which allows only Virginia residents and news media representatives to access state public records. The amicus brief argues that Virginia's "citizens-only" provision is constitutionally impermissible as it unecessarily burdens the rights of individuals and organizations outside of Virginia. This case is of particular interest to EPIC because state FOI laws are often necessary for oversight of new surveiilance programs. In 2008, EPIC brought a successful FOIA lawsuit in Virginia and obtained documents revealing an agreement to limit oversight of a State Fusion Center. For more information, see EPIC: v Virginia Department of State Police: Fusion Center Secrecy Bill.
  • EPIC Files Lawsuit for Details of ODNI Plan to Amass Data on Americans » (Aug. 2, 2012)
    EPIC has filed a Freedom of Information Act lawsuit against the Office of the Director of National Intelligence for details of the agency’s plan to gather personal data from across the federal government. The ODNI is the top intelligence agency in the United States, coordinating the activities of the CIA, the FBI, the DHS, and others. Under revised guidelines, the ODNI plans to obtain and integrate databases containing detailed personal information from across the federal government. The data will be kept for up to five years without the legal safeguards typically in place for personal data held by government agencies. EPIC's lawsuit asks the agencies to disclose the procedures it has established to safeguard privacy rights. For more information see: EPIC: Open Government.
  • EPIC Demands Evidence of TSA Body Scanner Rulemaking » (Jul. 19, 2012)
    EPIC has submitted a Freedom of Information Act request to the TSA, seeking documents about whether the agency actually intends to give the public the opportunity to comment on the controversial body scanner program. One year has passed since the D.C. Circuit Court of Appeals ordered the agency to "act promptly" and undertake a public notice-and-comment rulemaking. The agency has not done so but claims to be working on it. In a separate Petition for Mandamus EPIC asked the Court to require the agency to issue a proposed rule within 60 days or suspend the program. For more information, see EPIC v. DHS (airport body scanners).
  • EPIC Urges Privacy Safeguards for Defense Department Cybersecurity Program » (Jul. 11, 2012)
    EPIC has submitted comments to the Department of Defense, urging the agency to protect individual privacy when it obtains detailed information about Internet users from the private sector. Under current Department regulations, companies are encouraged to provide information about Internet users that may relate to "cyber incidents" and cyber "threats."This is similar to a controversial provision in Cyber Intelligence Information Protection Act ("CISPA"). EPIC recommended that the agency revise the regulations for the "Cyber Security and Information Assurance" program so that: (1) the program remain voluntary, (2) "cyber incident" and "threat" are narrowly defined, (3) liability is imposed on private companies for disclosing excess user information, (4) the Attorney General conduct annual audits, and (5) the agency adheres to federal privacy laws. EPIC also warned the agency to fully comply with the Freedom of Information Act, which has provided the public with important information about network security. For more information, see EPIC: Cybersecurity and EPIC: EPIC v. NSA (FOIA for NSA Cybersecurity Authority), and EPIC: EPIC v. NSA (FOIA for Google/NSA Relationship).
  • EPIC Joins Open Government Groups in Freedom of Information Act Case » (Jun. 20, 2012)
    EPIC has joined five other prominent open government groups in a friend of the court brief in support of Citizens for Responsibility and Ethics in Washington. The organization is seeking to reverse a federal court which held that federal agencies do not have to say whether they will comply with a FOIA request. In the friend of the court brief, the open government groups said that the ruling conflicts with the plain language of the Freedom of Information Act and would produce unnecessary confusion in FOIA cases. For more information, see EPIC: Open Government.
  • EPIC Asks Ombudsman to Investigate DHS FOIA Practices » (Jun. 4, 2012)
    EPIC has submitted a letter to the Office of Government Information Services, asking for an investigation into FOIA practices at the Department of Homeland Security. EPIC explained that the federal agency, which includes the TSA and the Bureau of Customs and Border Protection, routinely denies fee waivers in circumstances where the agency knows that the requester properly qualifies. By way of example, EPIC cited a recent FOIA appeal in which the agency wrongly denied a fee waiver request. EPIC said that the practice creates additional work for sophisticated FOIA requesters and may, as a practical matter, prevent other requesters from pursuing important FOIA requests. For more information, see EPIC: DHS Privacy Office and EPIC: Litigation Under the Federal Open Government Laws.
  • FOIA "Ombudsman" Releases Open Government Report » (May. 1, 2012)
    In response to several demands from Congress, the Office of Government Information Services (OGIS) has released a long-delayed report with recommendations to improve the administration of the Freedom of Information Act. The report addresses several FOIA processing issues, but doesn't examine the significant issue of delays in FOIA processing and efforts by agencies - such as the Department of Justice - to create new obstacles for FOIA requestors. And OGIS did not address EPIC's pending request to determine whether DHS's practice of vetting FOIA requests by political appointees is permissible. For more information, see EPIC: Open Government.
  • EPIC Appeals Denial in Surveillance Export FOIA Request; Files Follow-Up Request » (Apr. 27, 2012)
    EPIC has appealed a denial of a Freedom of Information Act request that sought records concerning the sale of surveillance technology by U.S. companies to repressive regimes like Syria and Yemen. "The failure to adequately justify the claim that no segregable portions of records exist violates FOIA, especially given the past practice of releasing aggregate data in response to substantially similar requests," the appeal states. EPIC also filed a follow-up request to the Department of Commerce seeking records related to the agency's investigation of companies like Blue Coat Systems, which sold surveillance devices to Syria. Recently, President Obama signed an executive order authorizing U.S. officials to impose sanctions against persons involved in the use of information and communications technology to facilitate human rights abuses in Syria and Iran. For more information, see EPIC: Freedom of Information Act.
  • EPIC Pursues Justice Dept. Records of Google Street View Investigation » (Apr. 27, 2012)
    EPIC has submitted a FOIA request to the Department of Justice for documents related to the agency's investigation of Google Street View and possible violations of federal wiretap laws. In an April 26, 2012 letter to the FCC In a related matter, Google claimed that the Department of Justice had "conducted and long ago completed its own thorough examination of the facts" related to the Google Street View matter. EPIC had asked the Justice Department to pursuer the matter. EPIC also has a pending FOIA request for the FCC's heavily redacted report on the Google Street View investigation. For more information see EPIC: Investigations of Google Street View.
  • Flawed Cybersecurity Bill Passes House, Headed for Senate without Privacy, FOIA Safeguards » (Apr. 27, 2012)
    The House of Representatives passed the Cyber Intelligence Information Protection Act ("CISPA"), a cybersecurity bill that allows the government to obtain detailed information about Internet users from the private sector. The bill preempts established privacy protections in other federal laws and opens the door for increased surveillance of individuals in the United States. The bill also creates a new Freedom of Information Act exemption, which will reduce government transparency and accountability. Earlier this year, EPIC said in a statement to the Senate that the Freedom of Information Act provides the public important information about network security, and warned that the National Security Agency has become a “black hole” for public information about cybersecurity. For more information, see EPIC: Cybersecurity and EPIC: EPIC v. NSA (FOIA for NSA Cybersecurity Authority), and EPIC: EPIC v. NSA (FOIA for Google/NSA Relatioship).
  • White House Targets Use of Technology by Human Rights Abusers » (Apr. 24, 2012)
    President Obama signed an executive order authorizing U.S. officials to impose sanctions against persons involved in the use of information and communications technology to facilitate human rights abuses in Syria and Iran. EPIC previously filed a Freedom of Information Act request seeking information regarding the export of surveillance technology by U.S. companies. In 2006, EPIC urged the Commerce Department to reexamine policies that allow for the export of surveillance technology to China. For more information, see EPIC: Freedom of Information Act.
  • EPIC Demands Details of Federal Communications Commission's Google Investigation » (Apr. 19, 2012)
    EPIC has filed a FOIA request for the unredacted version of the FCC's Google Street View report. The Federal Communications Commission announced that it will fine Google $25,000 for obstructing an investigation concerning Google Street View and federal wiretap law. A heavily redacted report released this week revealed that the Commission found that Google impeded the investigation by "delaying its search for and production of responsive emails and other communications, by failing to identify employees, and by withholding verification of the completeness and accuracy of its submissions." But the redacted report also raised questions about the scope of the FCC' Street View investigation. Surprisingly, the FCC concluded that Google had not violated the federal wiretap act, even though a federal court recently held otherwise. For more information, see EPIC: Investigations of Google Street View.
  • Coalition Urges Congress to Remove Cybersecurity FOIA Limitations » (Apr. 18, 2012)
    An open government coalition has asked House lawmakers to oppose provisions in "CISPA" that would cut off public access to information held by federal agencies. The Cyber Intelligence Sharing and Protection Act would allow the government to refuse to disclose broad swaths of information, otherwise subject to FOIA, that companies provide to the government. More than three dozen groups have signed the petition - including Openthegovernment.org, the Sunlight Foundation, Project On Government Oversight, and EFF. The groups have asserted that the legislation "constitutes a wholesale attack on public access to information under the Freedom of Information Act" and would impede the public's ability to evaluate whether the government is adequately combating cybersecurity threats. In a statement for a hearing on the FOIA and critical infrastructure information, EPIC also warned against new FOIA exemptions and said that the National Security Agency has become a "black hole" for public information about cybersecurity. For more information see EPIC: Cybersecurity, EPIC: EPIC v. NSA, Litigation Under the Federal Open Government Laws 2010.
  • EPIC Obtains New Details on PATRIOT Act » (Apr. 4, 2012)
    As the result of a Freedom of Information Act request, EPIC has obtained more than 650 pages of documents related to the PATRIOT Act. EPIC had requested information related to the FBI's abuse of PATRIOT Act authorities and documents concerning the 2009 sunset of the PATRIOT Act. The documents disclosed by the FBI include training presentations, answers to questions from Senators Leahy and Specter, and a list of reporting requirements. In an answer to Senator Leahy, the FBI stated that while it would discontinue the use of exigent letters, which the Inspector General had previously noted as a frequent source of abuse, the agency planned to continue its use of the emergency disclosures provision of the Electronic Communications Privacy Act. For more information, see EPIC: USA PATRIOT Act.
  • Department of Homeland Security Releases Revised Privacy Impact Assessments » (Mar. 23, 2012)
    The Privacy Office of DHS has released several revised Privacy Impact Assessments for various DHS programs. These reports analyze the privacy risks of federal government systems. Last year, EPIC FOIA requests regarding a Minority Report-like program called "FAST" found that the DHS had failed to adequately assess privacy risks. According to the agency, the "Future Attribute Screening Technology" program assesses "physiological and behavioral signals" to determine the probability that an individual might commit a crime. For more information, see: EPIC: Future Attribute Screening Technology (FAST) Project FOIA Request. To order the movie Minority Report from Amazon and support EPIC, click here.
  • House of Representatives Issues FOIA Request Management Report Card » (Mar. 20, 2012)
    The U.S. House of Representatives Committee on Oversight and Government Reform issued a "Report Card on Federal Government's Efforts to Track and Manage FOIA Requests." The Report Card assigned letter grades to agencies based upon their "ability and willingness . . . to submit information" to the House Committee about the agencies’ FOIA tracking systems. This information included the requester's name, the date of the request, a description of the records sought by requesters, the date the request was closed, and whether the agency provided responsive records to the request. The Federal Trade Commission was one of the highest scoring agencies, earning an "A+" for its FOIA management. The Department of Justice, the Department of Defense, and the Department of Homeland Security each received a "D" letter grade for their FOIA tracking systems. For more information, see: EPIC: Open Government.
  • EPIC to Argue for Disclosure of Google-NSA Agreement before Federal Appeals Court » (Mar. 19, 2012)
    EPIC will pursue its Freedom of Information Act request with the National Security Agency in scheduled arguments before the Court of Appeals for the DC Circuit this Tuesday morning. EPIC submitted the FOIA request in February 2010, following a widely reported collaboration between Google and the NSA after the China hack. The agency replied that it could "neither confirm nor deny" the existence of records responsive to EPIC's request. A lower court ruled in favor of the NSA, but EPIC has challenged that opinion, and the federal appeals court will hear the case on March 20, 2012. The case is EPIC v. NSA, No. 11-5233.
  • Open Government Groups Oppose Cyber Security FOIA Exemption » (Mar. 14, 2012)
    Open government organizations have sent a letter to Senator John McCain, opposing specific provisions in a cybersecurity bill he introduced. The SECURE IT Act would create a new Freedom of Information Act exemptions for "cyber threat information" as well as for all information shared with a cybersecurity center. FOIA exemptions limit public access to government information. The organizations stated, "Unnecessarily wide-ranging exemptions of this type have the potential to harm public safety and the national defense more than they enhance those interests." In a statement for a hearing on the FOIA and critical infrastructure information, EPIC also warned against new FOIA exemptions and said that the National Security Agency has become a "black hole" for public information about cybersecurity. For more information, see EPIC: Cybersecurity.
  • EPIC Urges Senate to Safeguard FOIA for Cybersecurity » (Mar. 12, 2012)
    In a detailed statement to the Senate for a hearing on the "Freedom of Information Act: Safeguarding Critical Infrastructure and the Public's Right to Know," EPIC said that safeguarding FOIA was critical to ensure government oversight and accountability. EPIC described how the FOIA provides the public important information about safety and security, but also warned that the National Security Agency has become a "black hole" for public information about cyber security. EPIC described several NSA programs, including "Perfect Citizen," Internet wiretapping, and even the NSA's own legal authority which the agency has refused to release to the public. EPIC v. NSA, a challenge to the agency's "neither confirm nor deny" response to an EPIC FOIA request will be heard next week by the DC Circuit Court of Appeals. For more information, see EPIC: Cybersecurity.
  • EPIC Publishes 2012 FOIA Gallery » (Mar. 12, 2012)
    In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2012. The gallery highlights key documents obtained by EPIC in the past year, including the Federal Bureau of Investigation's watch list guidelines, records of the Department of Homeland Security's social media monitoring program, Google's first Privacy Compliance Report, records detailing the government's FAST scanning program, records of the FBI's surveillance of Wikileaks supporters, and DHS records detailing the use of body scanners at the U.S. border. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA.
  • DHS Privacy Office Releases 2011 Data Mining Report » (Mar. 5, 2012)
    The Department of Homeland Security has released the 2011 Annual Data Mining Report. The report must include all of the Agency's current activities that fall within the legislative definition of "data mining." Among other things, this year's report references the Agency's programs to profile individuals entering or leaving the country to determine who should be subject to "additional screening." A FOIA request by EPIC in 2011 revealed that the FBI's standard for inclusion on the list is "particularized derogatory information," which has never been recognized by a court of law. The report also provides information on Secure Flight and Air Cargo Advanced Screening. For more information, see EPIC: FBI Watch List FOIA and EPIC: DHS Privacy Office.
  • Congress Grills Department of Homeland Security » (Feb. 16, 2012)
    Members of a House Committee today questioned DHS officials about the agency's monitoring of social networks and media organizations for information that "reflects adversely" on the agency or the federal government. Several members expressed support for EPIC's proposal that DHS suspend the program, warning that this activity violates First Amendment rights. New questions also arose when the DHS witnesses claimed that no other federal agencies were engaged in similar practices. According to many news sources, the FBI wants to monitor social media. The House hearing was called after EPIC obtained nearly 300 pages of documents detailing the Department of Homeland Security's activities. For more information see: EPIC v. Department of Homeland Security: Media Monitoring.
  • EPIC Seeks Public Release of Google's Privacy Report » (Feb. 1, 2012)
    EPIC has filed a Freedom of Information Act request with the Federal Trade Commission for the Privacy Report that Google was recently required to submit to the agency. The Commission had previously investigated Google after EPIC filed a complaint regarding Google's Buzz product, which transformed private user contacts into publicly available social network data. Last fall the Commission reached a settlement with Google and, as a result, the company is subject to a consent order that requires it to file regular reports with the Commission. EPIC has requested that Google's first report, filed on January 26, 2012, be released to the public. Because of Google's plan to change its business practice on March 1, 2012, EPIC has asked the FTC to expedite the disclosure of the report. For more information see EPIC: In re Google Buzz.
  • EPIC - FOIA Documents Reveal Homeland Security is Monitoring Political Dissent » (Jan. 13, 2012)
    As the result of EPIC v. DHS, a Freedom of Information Act lawsuit, EPIC has obtained nearly thee hundred pages of documents detailing a Department of Homeland Security's surveillance program. The documents include contracts and statements of work with General Dynamics for 24/7 media and social network monitoring and periodic reports to DHS. The documents reveal that the agency is tracking media stories that "reflect adversely" on DHS or the U.S. government. One tracking report -- "Residents Voice Opposition Over Possible Plan to Bring Guantanamo Detainees to Local Prison-Standish MI" -- summarizes dissent on blogs and social networking cites, quoting commenters. EPIC sent a request for these documents in April 2004 and filed suit against the agency in December. For more information, see EPIC: EPIC v. Department of Homeland Security: Media Monitoring.
  • EPIC Sues DHS Over Covert Surveillance of Facebook and Twitter » (Dec. 20, 2011)
    EPIC has filed a Freedom of information Act lawsuit against the Department of Homeland Security to force disclosure of the details of the agency's social network monitoring program. In news reports and a Federal Register notice, the DHS has stated that it will routinely monitor the public postings of users on Twitter and Facebook. The agency plans to create fictitious user accounts and scan posts of users for key terms. User data will be stored for five years and shared with other government agencies.The legal authority for the DHS program remains unclear. EPIC filed the lawsuit after the DHS failed to reply to an April 2011 FOIA request. For more information, see EPIC: Social Networking Privacy.
  • Justice Department Revises FOIA Proposal, But Problems Remain » (Nov. 4, 2011)
    In response to widespread criticism from EPIC and other open government groups, the Department of Justice has agreed to withdraw one of its proposed Freedom of Information Act revisions. The section would have allowed the agency to make misrepresentations about the existence of documents subject to the FOIA. In extensive comments to the Department of Justice, EPIC said that the Justice Department proposal would undermine the FOIA and is contrary to law as well as the views expressed by the President and the Attorney General. But EPIC also pointed to proposed changes that would place new burdens on FOIA requesters, make it more difficult to qualify for educational and news media fee status, allow the agency to terminate FOIA requests, and even destroy records subject to FOIA. For more information see EPIC: Open Government.
  • EPIC to Justice Department: Maintain Strong Open Government Regulations » (Oct. 20, 2011)
    In extensive comments to the Department of Justice, EPIC has urged the federal agency not to weaken the Freedom of Information Act (FOIA) as it has proposed. The Justice Department is considering regulations that would place new burdens on FOIA requesters, make it more difficult to qualify for educational and news media fee status, and allow agencies to terminate FOIA requests, and even make misrepresentations about the existence of documents and destroy records subject to a FOIA request. EPIC said that the Justice Department proposal would undermine the FOIA, is contrary to law as well as the views expressed by the President and the Attorney General. EPIC has an extensive FOIA practice and has recently uncovered documents regarding the FBI's Watchlist and the Department of Homeland Security's "Minority Report" Pre-crime Detection Program. The Justice Department must now decide whether to adopt the changes it has proposed, withdraw the rule, or make modifications. For more information, see EPIC: Open Government.
  • Documents Obtained by EPIC Reveal Government's "Minority Report" Scanning Program » (Oct. 7, 2011)
    Through a Freedom of Information Act request, EPIC has obtained documents from the Department of Homeland Security about a secretive "pre-crime" detection program. The "Future Attribute Screening Technology" (FAST) Program gathers "physiological measurements" from subjects, including heart rate, breathing patterns, and thermal activity, to determine "malintent." According to the documents obtained by EPIC, the agency is considering the use of the device at conventions and sporting events, and has already conducted field testing. CNET first reported on the EPIC FOIA request. For more information, see: EPIC: Future Attribute Screening Technology Project.
  • Documents Obtained by EPIC Reveal FBI Watch List Details » (Sep. 28, 2011)
    EPIC has obtained documents that reveal new details about standards for adding and removing names from the FBI watch list. The documents were obtained as the result of an EPIC Freedom of Information Act request to the Federal Bureau of Investigation. The FBI's standard for inclusion on the list is "particularized derogatory information," which has never been recognized by a court of law. Also, individuals may remain on the FBI watch list even if charges are dropped or a case is dismissed. The New York Times broke the story and posted the documents obtained by EPIC. For more information, see EPIC: FBI Watch List FOIA and EPIC: Open Government.
  • EPIC Asks Court to Require DHS Disclosure of Mobile Body Scanner Documents » (Sep. 22, 2011)
    EPIC has filed a motion for summary judgment in EPIC v. DHS, No. 1:11-cv-00945-ABJ, a FOIA case against the Department of Homeland Security for information about the planned expansion of the body scanner program. EPIC has asked the court to force the agency to disclose documents containing communications with Rapiscan and other vendors about the deployment of mobile body scanners. EPIC has already obtained hundreds of pages of documents describing how the agency is exploring the use of body scanners on people who travel by train, attend sporting events, enter federal buildings, or travel along public highways. For more information, see: EPIC: Body Scanner Technology and EPIC: FOIA Note #20.
  • DHS Refuses to Disclose Details of Mobile Body Scanner Technology » (Aug. 17, 2011)
    New documents released by the Department of Homeland Security to EPIC indicate the the agency continues to hide details about body scanners. In November 2010, EPIC filed a Freedom of Information Act request with the agency regarding the deployment of body scanners in surface transit and street-roving vans. In its latest document release the agency supplied several papers that were completely redacted. As a result of the agency's failure to comply with the Freedom of Information Act, EPIC has filed suit to force disclosure of the records. For more information, see: EPIC: Body Scanner Technology and EPIC: FOIA Note #20.
  • Senate Passes Faster FOIA Act » (Aug. 2, 2011)
    The Senate unanimously approved bipartisan legislation, cosponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), to improve Freedom of Information Act (FOIA) processing. The Faster FOIA Act will create an advisory panel to examine agency backlogs and provide recommendations to Congress. The bill awaits action by the House of Representatives. EPIC previously testified before the House Oversight Committee about FOIA delays and politicized processing within the Department of Homeland Security. For more information see: EPIC: Open Government and EPIC: Litigation Under the Federal Open Government Laws.
  • EPIC v. NSA: FOIA Suit for Cybersecurity Authority Will Move Forward, though National Security Council Remains a "FOIA-Free Zone" » (Jul. 8, 2011)
    A District of Columbia federal court ordered an EPIC lawsuit against the National Security Agency to proceed, holding that EPIC can "pursue its claim against the NSA for wrongfully withholding an agency record in its possession." EPIC's Freedom of Information Act suit seeks disclosure of National Security Presidential Directive 54 - the document that provides the legal basis for the NSA's cybersecurity activities. The NSA failed to disclose the document in response to EPIC's FOIA request, instead forwarding the request to the National Security Council. The Court held that the NSC is not subject to FOIA, but that the NSA's transfer of EPIC's request does not absolve the agency of its responsibility to respond to EPIC. For more, see: EPIC: EPIC v. NSA.
  • Senate Unanimously Passes Faster FOIA Act » (Jun. 1, 2011)
    The Senate has unanimously approved bipartisan legislation, sponsored by Senators Leahy (D-VT) and Cornyn (R-TX), that will improve the Freedom of Information Act (FOIA). The Faster FOIA Act will establish an advisory panel to examine agency backlogs in processing FOIA requests and provide recommendations to Congress for legislative and administrative action to enhance agency processing. The bill now moves on to the House of Representatives for consideration. EPIC testified earlier this year in a House Oversight Committee hearing on the need to strengthen FOIA. For more information, see EPIC: Open Government.
  • Faster FOIA Act Moves Forward in Senate » (Apr. 12, 2011)
    The Senate Judiciary Committee has approved bipartisan legislation, cosponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), to improve the Freedom of Information Act (FOIA) processing. The Faster FOIA Act will create an advisory panel to examine agency backlogs and provide recommendations to Congress. EPIC recently testified before the House Oversight Committee about FOIA delays and politicized processing within the Department of Homeland Security. For more information see: EPIC: Open Government and EPIC: Litigation Under the Federal Open Government Laws.
  • EPIC: DHS Review of FOIA Requests is "Unlawful" » (Mar. 31, 2011)
    EPIC testified today before the House Oversight Committee hearing "Why Isn't The Department Of Homeland Security Meeting The President's Standard On FOIA?" The hearing examined the DHS's political review of open government requests. The DHS "Awareness" program singled out FOIA requests for additional scrutiny by political appointees based on the subject of the requests and the identities of the requesters. EPIC Senior Counsel John Verdi called the program "uniquely harmful" and "unlawful." He pointed to Supreme Court precedent and the additional delay in FOIA processing. Also testifying at the hearing were the DHS General Counsel, the DHS Chief FOIA Officer, and the DHS Inspector General. For more information, see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.
  • EPIC to Testify at House Oversight Hearing on FOIA » (Mar. 28, 2011)
    EPIC Senior Counsel John Verdi will testify before the House Oversight Committee on March 31, 2011 regarding Homeland Security’s political review of FOIA requests and the effects of the agency’s policies on requesters. The hearing arises as the AP reports that DHS career staff repeatedly questioned the political review policy. This report also follows an earlier release of 1,000 agency documents revealing the long-standing process of vetting FOIA requests by political appointees. In a previous letter to the Committee, EPIC and a coalition of open government groups wrote that FOIA does not permit agencies to select requests for political scrutiny. For more information, see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.
  • EPIC Publishes 2011 FOIA Gallery » (Mar. 14, 2011)
    In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2011. The gallery highlights key documents obtained by EPIC in the past year, including records detailing the privacy risks posed by airport body scanners, agency plans to expand the scanner program to non-airport locations, FBI abuse of surveillance authorities, and the Federal Trade Commission's failure to investigate Google Street View. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA.
  • Supreme Court Affirms Open Government, Limits Exemptions » (Mar. 7, 2011)
    In Navy v. Milner, the Supreme Court held that the Freedom of Information Act’s “Exemption 2” is limited to employee relations and human resources issues. The decision overturns previous decisions by lower courts that applied the exemption to broader categories of records, allowing federal agencies to block disclosure of documents to the public. The Court stated that this practice contravened Congress’s intent. The Court emphasized that Congress intended all nine FOIA exemptions to be construed narrowly. EPIC is currently challenging the use of Exemption 2 in its lawsuit to force disclosure of records concerning full body scanners at airport checkpoints. The Court's decision in Navy v. Milner demonstrates that the Department of Homeland Security is improperly withholding information about the scanners from the public. For more information, see EPIC-Milner v. Dept. of Navy, and EPIC: OPEN Government.
  • Supreme Court: No "Personal Privacy" For Corporations in FOIA Cases » (Mar. 1, 2011)
    In FCC v. AT&T, The Supreme Court held that federal protections for "personal privacy" do not permit corporations to prevent disclosure of government records. AT&T sought to prevent the disclosure of documents the company had submitted to a federal agency, claiming that the corporation's "personal privacy" prevented release of the records pursuant to the Freedom of Information Act. EPIC filed a "friend of the court" brief in the case urging the Justices to reject AT&T's claim. The Court agreed with the FCC, EPIC and other amici, writing, "The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally." EPIC's brief cited the commonly understood meaning of "personal privacy" in the work of legal scholars and technical experts, as well as the use of these terms in an extensive survey of US privacy laws. For more information, see EPIC: FCC v. AT&T.
  • Chairman Issa Subpoenas Homeland Security Officials about FOIA Practices » (Feb. 25, 2011)
    Rep. Darrell E. Issa (R-CA), Chairman of the House Committee on Oversight and Government Reform, issued subpoenas to two Department of Homeland Security employees for depositions to take place on March 7 and March 8. Rep. Issa has undertaken an investigation of DHS’s policy of submitting FOIA requests to political review. EPIC and a coalition of open government organizations sent Rep. Issa and Ranking Member Elijah Cummings (D-MD) a letter supporting the investigation. The political review policy came to light after the release of over 1,000 agency documents revealed a long-standing process of submitting FOIA requests from watchdog organizations to review by political appointees. EPIC has also recommended that the FOIA Ombudsman undertake an investigation of this practice. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.
  • In Response to EPIC, Justice Department Offers No Public Justification for Data Retention » (Feb. 18, 2011)
    In response to an EPIC Freedom of Information Act request, the Department of Justice sent back only heavily redacted documents with no justification for data retention legislation. EPIC filed the request in 2010, seeking the Department's views on he Internet SAFETY Act, which would require internet service providers to retain user records for at least two years. The DOJ publicly supported the Act but has refused to provide a single substantive reason for that support. The Internet SAFETY Act has not yet been reintroduced in the 112th Congress. For more information, see EPIC: Data Retention.
  • EPIC v. NSA FOIA Lawsuit: NSA Will Neither Confirm Nor Deny Communications with Google » (Feb. 18, 2011)
    In a Freedom of Information Act lawsuit filed by EPIC against the National Security Agency for information about the NSA's relationship with Google, the NSA has replied that "confirming or denying the existence of any such records would reveal information relating to its core functions and activities . . ." EPIC sought the information, including a widely discussed cooperative research agreement between NSA and Google, because the agency's practices would impact the privacy interests of millions of Internet users both in the United States and around the world. The case is EPIC v. NSA, Civ. Action No. 10-1533 (RJL). EPIC has a related release against the NSA concerning the agency's cybersecurity authority. For more information, see EPIC - EPIC v. NSA.
  • EPIC, Coalition Urge Congress to Pursue FOIA Oversight » (Feb. 16, 2011)
    EPIC and a coalition of over 30 organizations and open government experts sent a letter to Rep. Darrell E. Issa (R-CA), Chairman of the House Committee on Oversight and Government Reform, urging public hearings on the DHS policy of vetting FOIA requests by political appointees. Rep. Issa has undertaken an investigation of this "political review" policy. The coalition also recommended that the Committee support the Office of Government Information Services, the "FOIA Ombudsman," and encourage the Government Accountability Office to conduct investigations of agency FOIA practices. EPIC previously requested an investigation into DHS's FOIA practices. EPIC said that the FOIA does not permit agencies to sect requests for political scrutiny. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.
  • EPIC Opposes TSA's Secret Evidence in Body Scanner Case » (Feb. 10, 2011)
    EPIC has opposed an effort by the Transportation Security Administration to provide secret evidence to the court in EPIC's challenge to the the airport body scanner program. The TSA claimed that it can withhold documents that it has designated "Sensitive Security Information" and scientific studies because they are "copyrighted materials." EPIC responded that the TSA failed to establish that the documents are Sensitive Security Information, and also that the TSA cannot withhold materials in a judicial proceeding because they are subject copyright. The argument before the DC Circuit in the case is scheduled for March 10. For more information, see EPIC: EPIC v. DHS: Body Scanners (Suspend the Program) and EPIC: EPIC v. DHS (FOIA).
  • Patriot Act Extension Fails in House Vote » (Feb. 9, 2011)
    A House vote on extending provisions of the Patriot Act that will lapse on February 28 failed. The three provisions concerned authorizing the FBI’s use of roving wiretaps, granting the government access to “any tangible items” of individuals under surveillance, and allowing the surveillance of individuals and groups not connected to identified terrorist groups. The House bill would have extended these provisions until December. The Senate Judiciary Committee is considering a bill that would extend the expiring provisions to 2013. Senator Patrick Leahy (D-VT) issued a statement explaining that he did not support efforts to extend the provisions that “undercut important oversight and government accountability of these intelligence gathering tools.” EPIC, through the Freedom of Information Act, recently obtained from the Intelligence Oversight Board, internal reports of intelligence law violations by the FBI that do not comply with Attorney General guidelines for oversight. EPIC has in the past urged the Senate Judiciary Committee to require the Attorney General to report to Congress on potentially unlawful investigations. For related information, see EPIC: USA Patriot Act and EPIC: PATRIOT FOIA Litigation.
  • Chairman Issa Investigates "Political Review" Policy at Homeland Security » (Feb. 2, 2011)
    Rep. Darrell E. Issa (R-CA), chair of the House Committee on Oversight and Government Reform, has issued a letter to Secretary Janet Napolitano demanding that DHS release all documents regarding the agency's policy of vetting FOIA requests through political appointees. Rep. Issa also asked that DHS political appointees appear before the Committee for interviews regarding the policy. Previously, EPIC urged the FOIA Ombudsman to conduct an investigation of the DHS. EPIC said the "political review" policy is contrary to federal law and Supreme Court holdings; the FOIA does not permit agencies to select requests for political scrutiny. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.
  • DHS Releases FOIA Report, But Questions Remain » (Jan. 24, 2011)
    The Department of Homeland Security has released the Freedom of Information Act Report for 2010. The report analyzes the processing of FOIA requests made throughout the year by each DHS component, detailing the disposition of each request, response times, and the number of backlogged requests. DHS is under scrutiny for their policy of referring FOIA requests to political appointees before processing. The release of over 1,000 agency documents revealed a persistent agency practice of flagging FOIA requests from EPIC and other watchdog organizations for referral.The FOIA does not permit agencies to select FOIA requests for political scrutiny and the Supreme Court has stated that neither the identity of the FOIA requester nor the reason for the request is relevant to the processing of requests. EPIC has recommended that the FOIA Ombudsman investigate the Department’s policy. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.
  • EPIC Urges Investigation of White House FOIA Review Policy » (Dec. 8, 2010)
    In a letter (Appendix 1-6, 7-12, 13-18)sent today to the FOIA Ombudsman, EPIC recommended an investigation of the Department of Homeland Security’s policy of referring FOIA requests to political appointees in the White House. Under the DHS policy, political appointees receive detailed information about the identity of FOIA requesters and the topics of their requests. This policy is contrary to federal law and Supreme Court holdings, as the FOIA does not permit agencies to select FOIA requests for political scrutiny. The release of over 1,000 agency documents reveals a persistent agency practice of flagging FOIA requests from EPIC and other organizations for referral to political appointees. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.
  • EPIC Challenges DoD FOIA Processing Policies » (Nov. 23, 2010)
    EPIC filed a request with the FOIA Ombudsman challenging the Department of Defense's unlawful assertion that the DoD has the statutory authority to administratively withdraw a FOIA request without input or consultation from the FOIA requester. DoD made the assertion in response to a FOIA request EPIC had filed seeking documents detailing the agency's agreements with Project Vigilant, a private sector company that monitors Internet Service Providers and provides that information to federal agencies. The FOIA Ombudsman is authorized to review policies and procedures of administrative agencies, review compliance by administrative agencies, and recommend policy changes to Congress and the President. EPIC requested that the FOIA Ombudsman investigate DoD's policies and publish a report of its findings. For related information see Litigation Under the Federal Open Government Laws 2010 and EPIC: Open Government.
  • EPIC Files Suit For Documents Regarding Google/NSA Partnership » (Sep. 13, 2010)
    Today, EPIC filed a Freedom of Information Act lawsuit against the National Security Agency in the United States District Court in the District of Columbia. The agency failed to respond to EPIC's FOIA request for documents about an "Information Assurance" partnership with Google. EPIC previously appealed to the agency to comply with its legal duty to produce the documents, but he agency failed to respond. EPIC is also seeking the Presidential Directive that grants the NSA authority to conduct electronic surveillance in the United States. For more information, see EPIC: Open Government.
  • Senators Question Safety of Airport Body Scanners, Object to Program Expansion » (Aug. 18, 2010)
    Three U.S. Senators have objected to the Department of Homeland Security's expansion of the airport body scanner program. In a letter to DHS Secretary Janet Napolitano, Senators Collins (R-ME), Burr (R-NC), and Coburn (R-OK) have asked "why the Department continues to purchase this technology when legitimate concerns about its safety appear to remain unanswered." The Senators noted that "the issue of radiation associated with the backscatter x-ray AIT machines has not been adequately addressed by TSA." They urged the agency's Chief Medical Officer, working with independent experts, to conduct a review of the health effects on travelers and airport personnel. EPIC recently submitted a FOIA request to the DHS for all records of tests conducted by the agency regarding radiation impacts. EPIC has also filed an emergency motion in federal court to suspend the program, pending an thorough review of the airport body scanner program. For more information, see EPIC: Whole Body Imaging Technology and EPIC v. DHS (Suspension of Body Scanner Program).
  • EPIC FOIA - Feds Save Thousands of Body Scan Images » (Aug. 4, 2010)
    In an open government lawsuit against the United States Marshals Service, EPIC has obtained more than one hundred images of undressed individuals entering federal courthouses. The images, which are routinely captured by the federal agency, prove that body scanning devices store and record images of individuals stripped naked. The 100 images are a small sample of more than 35,000 at issue in the EPIC lawsuit. EPIC has pursued a similar FOIA lawsuit against the Dept. of Homeland Security but the DHS refuses to release the images it has obtained. EPIC has also filed suit to stop the deployment of the machines in US airports. For more information, see EPIC Body Scanners, EPIC - EPIC v. DOJ (Marshall Service FOIA), and EPIC Press Release.
  • EPIC FOIAs NSA for Details of "Perfect Citizen" » (Jul. 16, 2010)
    EPIC has filed a Freedom of Information Act request with the National Security Agency regarding the new secret cybersecurity program known as "Perfect Citizen." According to the Wall Street Journal, the program "would rely on a set of sensors deployed in computer networks for critical infrastructure that would be triggered by unusual activity suggesting an impending cyber attack," although the agency has claimed that there "is no monitoring activity involved, and no sensors are employed in this endeavor" but has refused to release the details of the program. In its request, EPIC has sought contracts, memoranda, and other records relating to "Perfect Citizen." For more information, see EPIC Cybersecurity and Privacy.
  • Supreme Court to Review Freedom of Information Act Case Exempting Agency Documents from Public Disclosure » (Jun. 28, 2010)
    Today, the Supreme Court agreed to hear Milner v. Department of the Navy a case in which a federal appeals court allowed the Navy to withhold records sought under the Freedom of Information Act. At issue in the case is the scope of Exemption 2 of the FOIA, which permits agencies, in some circumstances, to withhold information requested pursuant to FOIA. The exemption at issue exempts information “related solely to the internal personnel rules and practices of an agency.” Writing in dissent, Judge Fletcher said that the FOIA exemptions "must be narrowly construed." For more information see EPIC: Open Government; EPIC FOIA Manual.
  • FOIA Update - EPIC Forces Disclosure of Report on Obama Passport Breach  » (Jun. 23, 2010)
    EPIC's Freedom of Information Act lawsuit against the State Department, EPIC v. State, has produced a report detailing security breaches of passport data for several Presidential candidates. Federal investigators prepared the report in the wake of March 2008 breaches that exposed Barack Obama, Hillary Clinton, and John McCain's personal information. Previously secret sections state "the Department was ineffective at detecting possible incidents of unauthorized access," and criticized the agency's failure to "provide adequate control or oversight." Portions of the report remain secret - the agency hasn't fully implemented investigators' recommendations. EPIC testified before the Senate in 2008 concerning the security breaches, urging lawmakers to limit employee and contractor access to personal data. For more, see EPIC Passport Privacy and EPIC Open Government.
  • Senate Unanimously Passes Faster FOIA Act » (May. 7, 2010)
    The Senate unanimously passed the Faster FOIA Act of 2010, introduced by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), that will establish a 16-member commission to determine methods for reducing delays in processing FOIA requests. Government reports reveal substantial delays in disclosing records subject to the open government law. The legislation seeks to improve the processing of FOIA requests. EPIC frequently uses the FOIA to obtain information about government programs that impact privacy rights. For more information, see EPIC: FOIA Litigation Docket, EPIC: FOIA Litigation Manual.
  • EPIC Demands Release of Classified Answers on Privacy and Internet Standards from Cyber Command Nominee » (Apr. 19, 2010)
    EPIC has filed a Freedom of Information Act (FOIA) request with the National Security Agency (NSA) seeking the "classified supplement" that Director Lt. Gen. Keith Alexander filed with his answers to questions from the Senate Armed Services Committee regarding his nomination to be the Commander of the newly formed United States Cyber Command. Several of Lt. Gen. Alexander's classified responses were to questions regarding the privacy of Americans' communications, and EPIC's request urges the Agency to make the full responses public. EPIC is currently in litigation with the NSA to obtain the secret policy for NSA surveillance authority. For more information, see EPIC Sues NSA to Force Disclosure of Cybersecurity Authority.
  • Faster FOIA Act Heading for Senate Vote » (Apr. 19, 2010)
    A bill to improve the speed at which the government processes requests under the Freedom of Information Act (FOIA), called the Faster FOIA Act of 2010, was passed by the Senate Judiciary Committee late last week and has been reported to the full Senate for a vote. The bill was introduced in March by Senators Leahy (D-Vt.) and Cornyn (R-Tx.) and will establish a 16-member commission to conduct a study to determine methods for reducing delays in processing FOIA requests. For more information, see EPIC FOIA Litigation Docket, EPIC FOIA Litigation Manual.
  • EPIC v. Homeland Security: Government has Over 2,000 Photos from Airport Body Scanners » (Apr. 16, 2010)
    As a result of a Freedom of Information Act lawsuit, EPIC has obtained hundreds of pages of documents from the Department of Homeland Security about the plan to deploy full body scanners in US airports. A letter to EPIC reveals that the government agency possesses about 2,000 body scanner photos from devices that the DHS said earlier "could not store or record images." EPIC has also obtained the most recent device procurement specifications, and several hundred new pages of traveler complaints. For more information, see EPIC: Whole Body Imaging and EPIC: EPIC v. Department of Homeland Security
  • Senators Leahy and Cornyn Introduce Bill to Reduce FOIA Delays » (Mar. 16, 2010)
    Senators Patrick Leahy and John Cornyn introduced the Faster FOIA Act, which would establish a panel to examine agency backlogs in processing FOIA requests. Government reports reveal substantial agency delays in disclosing FOIA records. The bill comes at the beginning of Sunshine Week, a national observance of the importance of open government. EPIC makes frequent use of the FOIA to obtain information about privacy issues. EPIC celebrated Sunshine Week by publishing the EPIC FOIA Gallery: 2010. For more, see EPIC: Open Government and EPIC Bookstore: FOIA.
  • EPIC Publishes 2010 FOIA Gallery » (Mar. 16, 2010)
    In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2010. The gallery highlights key documents obtained by EPIC in the past year, including records detailing the privacy risks posed by airport body scanners, fraudulent "parental control" software, and federal agencies' contracts with social networking web sites. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA.
  • Independent Open Government Audit Finds Mixed Results for Obama Administration » (Mar. 15, 2010)
    The National Security Archive at George Washington University has released the results of its annual government-wide FOIA audit. The audit tested agency responsiveness to President Obama's new directives on government transparency and openness. The Archive report concluded that less than half of federal agencies have responded to the new open government directives with concrete changes, and only four agencies "show both increases in releases and decreases in denials under the FOIA." Attorney General Eric Holder spoke today about the administration's FOIA record. For more information, see EPIC Open Government.
  • EPIC Seeks Records on Google-NSA Relationship » (Feb. 4, 2010)
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  • EPIC Files Appeal for NSA Policy on Network Surveillance » (Nov. 24, 2009)
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  • EPIC Endorses Better Approaches on Government Transparency » (Jun. 3, 2009)
  • White House Seeks User Comments on Government Transparency » (May. 21, 2009)
    The White House is seeking public comments on the open government proposal. President Obama's memorandum on Transparency and Open Government directed the Chief Technology Officer, the Office of Management and Budget, and the General Services Administration to develop these recommendations. The Open Government Directive will instruct executive departments and agencies on specific actions to implement transparency principles. The first phase of the initiative involves an online brainstorming session and comments are due by May 28, 2009. To learn more about transparency and open government, consider purchasing EPIC's FOIA litigation manual.
  • EPIC Seeks Government Agreements with Social Networking Companies » (Apr. 30, 2009)
    EPIC submitted a Freedom of Information Act request to the Government Services Administration seeking agency records concerning agreements the GSA negotiated between federal agencies and social networking services, including Flickr, YouTube, Vimeo, Blip.tv, and Facebook. In the FOIA request, EPIC is asking for the public release of the contracts and any legal opinions concerning the application of the Privacy Act of 1974 and Freedom of Information Act to the services that collect information on citizens. For more information see EPIC’s pages Social Networking, Facebook, and Cloud Computing.
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    Today, EPIC filed a Freedom of Information Act request demanding disclosure of records detailing airport scanners that take naked pictures of American travelers. Security experts describe the "whole body imaging" scanners as virtual strip searches. The Transportation Security Administration plans to make the scans mandatory at all airport security checkpoints, despite prior assurances that whole body imaging would be optional. EPIC's request seeks documents concerning the agency's ability to store and transmit detailed images of naked U.S. citizens. For more information, see EPIC's Whole Body Imaging page and EPIC's FOIA Litigation Manual.
  • Attorney General Issues New FOIA Guidelines » (Mar. 19, 2009)
    The Attorney General today set out new Freedom of Information guidelines pursuant to President Obama's memorandum directing all executive branch departments and agencies to maintain a presumption of openness in releasing information requested from them. In the memorandum, the Attorney General strongly encouraged agencies to make discretionary disclosures of information to the fullest extent possible. Rescinding the FOIA Memorandum of October 12, 2001, the Attorney General stated that the Justice Department will defend a FOIA request only if the disclosure would harm an interest protected by a statutory exemption or its disclosure is prohibited by law. The memorandum also directs that each agency is fully accountable for its administration of FOIA and should be mindful of their obligation to work "in a spirit of cooperation." For more information, see EPIC's Open Government page.
  • EPIC v. DOJ - EPIC Urges Court to Require Disclosure of Warrantless Wiretap Memos » (Mar. 6, 2009)
    EPIC, the ACLU, and the National Security Archive asked a federal court in Washington, DC to order the immediate disclosure of government memos describing the legal basis for the warrantless wiretapping of American citizens by the Bush Administration. The court is currently reviewing the documents, prepared by the Office of Legal Counsel, as part of an EPIC Freedom of Information Act lawsuit. This week, the Attorney General released several related memos, which previously were secret. The new release follows President Obama's recent statement on government transparency. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," the President said. For more information, see EPIC v. DOJ.
  • EPIC, Freedom of Information Advocates Endorse President » (Jan. 29, 2009)
    EPIC joined Freedom of Information advocates from around the world in an Open Letter welcoming "President Obama's Initiative on Transparency." The organizations also supported the President's call for a "clear presumption in favor of disclosure of information." They called on "governments around the world to take similar action to promote transparency and respect for the right of access to information." For more information about open government, see EPIC's Open Government manual.
  • President Obama Issues New Orders on FOIA » (Jan. 21, 2009)
    In his first 24 hours in Office, President Obama issued a series of Executive Orders. One of the Orders dealt with the Freedom of Information Act (FOIA) activity of federal government agencies. He stated that prior FOIA rules were governed by a "defensible argument" for not disclosing information to the public. The President said that, "Starting today, every agency and department should know that his administration stands on the side, not of those who seek to withhold information, but with those who seek to make it known." In other initiatives President Obama issued a suspension of legal proceedings against detainees being held in Guantanamo Bay. For more information, see EPIC's page on Former Secrets.

Summary

This case concerns the scope of the deliberative process privilege of Exemption 5 of the Freedom of Information Act ("FOIA"). The Sierra Club seeks documents produced by the Fish & Wildlife Service and the National Marine Fisheries Service during the formal consultation process between the Services and the EPA on a proposed EPA rule. The Services drafted biological opinions reflecting the agencies' view that the proposed EPA rule would jeopardize endangered species, and before finalizing the opinions, transmitted the substance of the documents to the EPA. The EPA then amended and reissued the proposed rule. The Sierra Club seeks the biological opinions for the EPA rule as originally proposed as well as related documents. The Services claim that the deliberative process privilege allows the agencies to withhold the documents. The District Court ordered most of the documents released in full, and the Ninth Circuit affirmed most of the order to compel disclosure. In particular, both courts found that the biological opinions were not predecisiomal or deliberative, and thus was not protected by the deliberative process privilege.

Background

Factual Background

The Environmental Protection Agency (EPA) is tasked with regulating the design and operation of cooling water intake structures to reduce their potential harm. Section 7 of the Endangered Series Act (ESA) requires that federal agencies conduct a “formal consultation” with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, “the Services”) if a proposed agency action “may affect listed species or critical habitat.” As part of the consultation, the Services must provide the EPA an opinion on whether the proposed action is “likely to jeopardize” the continued existence of a listed ESA species or habitat. If the Services issue a “jeopardy” opinion, they must “include reasonable and prudent alternatives, if any.”

The EPA initiated a formal consultation process in 2013. The Services determined that the EPA's proposed rule would cause jeopardy to protected ESA species and critical habitats. The Services included reasonable and prudent alternatives in their draft opinions and sent portions of the draft opinions to the EPA, but never formally transmitted the opinions in their entirety.

In March 2014, the EPA issued an updated version of its rule, incorporating feedback from the draft jeopardy opinions. After additional back-and-forth, the Services issued a second set of opinions on May 19, 2014. In their final opinion, the Services held that there was “no jeopardy” from the revised version of the proposed rule. EPA issued the final Cooling Water Intake regulation the same day.

On August 11, 2014, the Sierra Club submitted Freedom of Information Act (FOIA) requests to the Services for records related to the consultation. The Services produced some documents, but withheld others under FOIA’s Exemption 5, which shields federal agencies from disclosing “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” Exemption 5 includes the “deliberative process privilege.”

Legal Background

FOIA mandates a “broad disclosure of Government records,” but lists nine exemptions under which agencies can withhold documents. The Supreme Court has “consistently stated that FOIA exemptions are to be narrowly construed.”

Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The deliberative process privilege, which is included in FOIA’s Exemption 5, protects documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which Government decisions and policies are formulated. The purpose of the exemption is to protect open and frank discussion among agency personnel.

The present case involves a circuit split between the Second, Ninth, and D.C. Circuits. In a string of decisions, the Ninth Circuit has held that, to qualify for the deliberative process privilege, an agency must show that a document is both “predecisional” and “deliberative.” A document is predecisional if it is drafted by a staff member to advise a decision maker. A document is deliberative if reflects the opinion of the individual staff member, not the decision maker.

In contrast, the D.C. Circuit has held that draft documents for agency decisions that “died on the vine” are protected by Exception 5. The decision, written by then-Judge Kavanaugh, held that “a draft is still a draft and thus still predecisional and deliberative.” Under this rule, documents that are not formally finalized yet reflect an agency decision maker's position on an issue may nevertheless be exempt from disclosure.

Sierra Club pursued disclosure of the documents at issue in this case in a FOIA case in the Ninth Circuit and in discovery during separate litigation over the final EPA rule in the Second Circuit. The two courts of appeals came to different decisions: the Ninth Circuit ordered disclosure, while the Second did not. However, this "split" is most easily explained by the different standards at issue due to the different legal postures of the cases: in the Ninth Circuit, the Services had the burden to show that the documents can be withheld, while the Sierra Club had the burden to show that the documents should be disclosed through discovery.

Procedural History

The Sierra Club filed a complaint seeking disclosure of documents related to the EPA rule. The U.S. District Court for the Northern District of California ruled that four documents were protected in their entirety by Exception 5, a fifth document was partially protected, and the rest were ordered to be released. The Services appealed. The Ninth Circuit affirmed in part and reversed in part. Out of the twelve documents ordered to be disclosed by the district court, the Ninth Circuit shielded three documents from disclosure. The Services petitioned for a writ of certiorari to the Supreme Court, which was granted on March 2, 2020.

U.S. District Court for the Northern District of California

The Sierra Club filed a complaint in the U.S. District Court for the Northern District of California on December 21, 2015, requesting documents that were withheld under FOIA’s deliberative process privilege. The parties filed cross motions for summary judgement. In total, sixteen documents remained in dispute and were submitted to the court for in camera review. Ultimately, the court ordered the Services to produce eleven of the documents in their entirety and one document partially. These documents were either “relatively polished drafts” or documents with “no subjective comments, recommendations, or opinions.” Four documents were shielded from disclosure. The protected documents were mostly “preliminary draft[s] with notes, comments, and highlighting that reflect ‘internal discussions.’” The Services appealed the judgement, arguing against the disclosure of the eleven documents.

U.S. Court of Appeals for the Ninth Circuit

On review, the U.S. Court of Appeals for the Ninth Circuit affirmed the disclosure of nine of the documents and reversed the disclosure of three documents. The court relied primarily on Ninth Circuit precedent to make its decision.

The biggest issue the court had to resolve was whether the 2013 biological opinions were predecisional. The Services argued that the opinions were predecisional because they were written before the EPA published its final rule. However, the Supreme Court has held that a biological opinion is a “final agency action.” As a result, even though the EPA’s final rule was ultimately changed, the biological opinions at the time were the “final view of the Services” and subject to disclosure. By contrast, the court permitted the Services to withhold disclosure of the December 2013 reasonable and prudent alternatives because they “appear to be successive drafts of the Services’ recommendations” and “comparing these drafts would shed light on FWS’ internal vetting process.”

Supreme Court of the United States

On October 25, 2019, the Services filed a petition for a writ of certiorari. The Services argued that the Ninth Circuit decision was in direct conflict with decisions from other circuits, including a D.C. Circuit opinion authored by then-Judge Kavanaugh. The Services pointed out that the same documents at issue here were already denied to the Sierra Club in a related Second Circuit case.

On March 2, 2020, the U.S. Supreme Court granted certiorari. The question presented is:

Whether Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5) (2012), by incorporating the deliberative process privilege, protects against compelled disclosure a federal agency's draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1536, and that concerned a proposed agency action that was later modified in the consultation process.

EPIC's Interest

EPIC has an interest in open government. EPIC frequently files FOIA requests to educate the public and to keep government agencies accountable. EPIC uses FOIA requests to monitor important privacy interests, most recently when states have undertaken contact tracing programs. EPIC also frequently litigates FOIA cases.

EPIC has filed amicus briefs in cases that specifically involved Exemption 5’s deliberative process privilege. For example, EPIC filed an amicus brief in New York Times v. DOJ. In that case, the DOJ withheld legal analysis justifying the Obama Administration’s controversial “targeted killing” drone program. Ultimately, the Second Circuit held that the memo was not part of the deliberative process and did not qualify for Exemption 5 protection.

EPIC has also litigated FOIA cases involving the deliberative process privilege. Documents explaining intermediate decisions are important for public oversight. For instance, in EPIC v. FBI (Privacy Impact Assessments), EPIC obtained privacy threshold analyses despite agency claims that the documents were deliberative and fell under Exemption 5. The threshold analyses showed that FBI officials had not conducted Privacy Impact Assessments despite determining that the systems required them. In EPIC's experience, agency claims of the deliberative process privilege are often over broad. In EPIC v. DOJ (Criminal Justice Algorithms), for example, EPIC obtained a DOJ report on predictive policing that the agency claimed was deliberative despite the document being a final report to the White House.

Legal Documents

U.S. Supreme Court, (No. 19-547)

U.S. Court of Appeals for the Ninth Circuit, 925 F.3d 1000 9th Cir. 2019 (No. 17-16560)

U.S. District Court for the Eastern District of North Carolina (No. 3:15-cv-05872)

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