Court Orders Justice Department to Deliver Patriot Act Documents

In March 2005, the Electronic Privacy Information Center (EPIC) filed a request under the Freedom of Information Act (FOIA) for documents pertaining to the U.S. Justice Department’s administration of the USA PATRIOT Act of 2001. Specifically, EPIC requested information about how the Justice Department had used its investigatory powers under the Foreign Intelligence Surveillance Act (FISA), which were temporarily expanded by the PATRIOT Act. These provisions were scheduled to sunset, or lapse, on December 31, 2005, unless they were extended by Congress. EPIC sought expedited processing of the documents so that it could have information to present before Congress at hearings on the PATRIOT Act’s renewal.The Justice Dept. granted EPIC’s request for expedited processing, but after no documents were produced, EPIC filed suit in the District Court for the District of Columbia. EPIC moved to compel expedited processing of its FOIA request on June 14. After a status conference on November 8, the court ruled in favor of EPIC and ordered the parties to submit a timeline for the processing of the remaining documents. However, after the parties failed to reach an agreement, Judge Gladys Kessler issued an order establishing a timeline.

At the Nov. 8 status conference, the Justice Dept. revealed that it had narrowed the number of potentially responsive pages from 130,000 to 18,000 and that approximately 5,000 pages of documents had been identified as potentially responsive as early as June 29. The Justice Dept. presented evidence that the FBI should be able to process only about 1000 pages per month, and argued that the nature of EPIC’s request made processing it more difficult than it originally anticipated. EPIC had requested all information regarding the FBI’s expanded authority under certain provisions of the PATRIOT Act and for all communications that discussed the sunset of those provisions. Judge Kessler, however, did not find this evidence compelling, noting that even after seven months of processing, the FBI could not even give EPIC an estimate as to its progress. “What is clear is that Plaintiff’s FOIA request, which should have been processed on an expedited basis, has been pending for nearly eight months.” Finding the FBI’s efforts to be “unnecessarily slow and inefficient,” Judge Kessler ordered the Justice Dept. to process 1500 pages every 15 calendar days and turn over the relevant pages to EPIC, and to inform EPIC of the total number of pages relevant to the FOIA request within 60 days. In a small concession to the Justice Dept., the order does not require the documents to be categorized according to EPIC’s specific requests.