Case Summary and Outcome

This Order is based on a Freedom of Information Act (“FOIA”) request filed by the American Civil Liberties Union (“ACLU”), the ACLU of North Carolina, and the Media Freedom and Information Access Clinic (“MFIAC”). Movants filed to obtain the release of opinions of the Foreign Intelligence Surveillance Court regarding Section 215 of the U.S. Patriot Act. (50 U.S.C. Section 1861). In its Order, the Court largely avoided deciding the case but nonetheless issued some noteworthy holdings regarding access to opinions under a FOIA request.

Facts

The Court first established that the movants had standing to file the FOIA. To establish standing, the moving party must demonstrate that there is a concrete, particularized, and actual or imminent injury; that the injury is fairly traceable to the challenged action; and that the injury is redressable by a favorable ruling. The movants claimed that withholding the Section 215 Opinions from the public violated the First Amendment right of access. The movants further claimed that the injury was actual, rather than imminent, because the Section 215 Opinions had not previously been available to the public. Additionally, the Movants’ injury was concrete because the lack of access to public information concretely impeded them from performing their own activities, namely the ACLU’s active participation in the legislative and public debates about the proper scope of Section 215 and the advisability of amending that provision is obvious from the public record and not reasonably in dispute. Based on these arguments, the Court determined that the Movants had standing to file the FOIA request.

In addressing the direct release of the Opinions, the Court relied on the principle of comity (commonly referred to as the ‘first to file’ rule), and deferred from deciding on that discreet issue because there was an on-going case in the U.S. District Court for the Southern District of New York regarding the release of the Opinions. Because that case had been filed first, the Court declined to address the movants’ direct claims regarding the release of the Section 215 Opinions.

However, the Court ordered a declassification review by the government of other Section 215 orders not included in the FOIA action. The Court determined that it was appropriate to take steps towards the publication of the Section 215 Opinions and documents that were not subject to the ongoing FOIA case in the U.S. District Court for the Southern District of New York.

Decision Overview

The majority of the Court’s Order addressed the issues of standing and comity. In evaluating whether documents not already covered under the previously existing FOIA case should be released, the Court recognized that the public interest could be served by the release of the documents, and that the release of the documents would contribute to informed debate.  The Court also recognized that the release of the documents not covered under the FOIA request would create transparency for the U.S. Foreign Intelligence Surveillance Court’s proceedings.