EFF’s lawsuit in the Northern District of California
In response to a Court Order dated July 19, 2013, the government agreed to complete its declassification review by September 10, 2013, and release “orders and opinions of the FISC issued from January 1, 2004 to June 6, 2011 that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215 and responsive ‘significant documents, procedures or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.’” The government further agreed that by October 10, it would “re-review” a subset of the remaining documents responsive to the EFF’s FOIA request and that by October 31, it would complete a “re-review” of all remaining responsive documents. Status Report, EFF v. Department of Justice, Case No. 4:11-cv-05221 (N.D. Cal. Sept. 4, 2013)
ACLU’s lawsuit in the Southern District of New York
On August 16, 2013, the government agreed to review the FISC opinions at issue in the case by September 10,and release all parts of the opinions that could be segregated from those that were exempt from disclosure under FOIA. The government agreed to do the same with a second tranche of documents by October 10 and with all remaining documents by October 31. Order, American Civil Liberties Union et al. v. FBI et al., Case No. 11 Civ. 7562 (SDNY Aug. 16, 2013).
ACLU’s motion before the FISC
On September 13, 2013, Judge F. Dennis Saylor IV of the FISC dismissed the ACLU’s motion without prejudice to the extent that the motion sought publication of the same FISC opinions that were at issue in the ACLU’s suit in the Southern District of New York. In major victories for the ACLU, however, Judge Saylor rejected the government’s argument that the ACLU lacked standing to seek the publication of opinions pertaining to Section 215. The judge further ordered that by October 4, the government (and the ACLU, if it had pertinent information) was to identify any FISC opinions pertaining to Section 215 that were not at issue in the Southern District of New York litigation. Upon the government’s completion of a declassification review, the FISC judge who authored each opinion not covered by the Southern District of New York litigation was to make the decision on the opinion’s publication. In arriving at these rulings, Judge Saylor noted that “publication with only limited redactions may now be feasible, given the extent of the government’s recent public disclosures about how Section 215 is implemented.” Opinion and Order, In re Orders Issued By this Court Interpreting Section 215 of the Patriot Act, Docket No. Misc.13-02 (FISC Sept. 13, 2013).
By contrast to the standing determination in regard to the ACLU, Judge Saylor’s September 13 Opinion and Order held that the Media Freedom and Information Access Clinic at the Yale Law School (the “MFIAC”) did not have standing to seek the publication of the FISC’s opinions. On August 7, 2014, Judge Saylor granted the motion for reconsideration that MFIAC had brought on October 11, 2013, and reinstated MFIAC as a party to the litigation.