Global Freedom of Expression

In re Orders of this Court Interpreting Section 215 of the Patriot Act

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    September 13, 2013
  • Outcome
    Access to Information Granted, Access to Information Denied, Other
  • Case Number
    2013 WL 5460064
  • Region & Country
    United States, North America
  • Judicial Body
    Specialized Court/Tribunal
  • Type of Law
    Civil Law
  • Themes
    Access to Public Information
  • Tags
    Freedom of Information Act ("FOIA"), Intelligence Agencies, Public Interest

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Case Analysis

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.


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.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

The Court refused to address whether the Section 215 Opinions could be released under FOIA, and only issued an opinion on documents that fell outside of the scope of the preexisting FOIA case. Thus, because there is no direct holding regarding the FOIA request (there is only an order regarding other documents), it is difficult to characterize this Opinion as either expanding or contradicting expression.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

All filings with and proceedings held by the United States Foreign Intelligence Surveillance Court are secret. Records of the proceedings are generally classified, and rarely made available to the public. The United States Foreign Intelligence Surveillance Court’s decisions do not hold the power of precedent.

The decision was cited in:

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