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Although the government cites a litany of exemptions for its withholdings, it places special emphasis on Exemption 7(A), which authorizes the witholding of records 'compiled for law enforcement purposes,' if disclosed 'could reasonably be expected to interfere with enforcement proceedings.' But the records EPIC seeks concern the targeting of individuals engaged in lawful First Amendment activities for which no legitimate law enforcement purpose exists. To be precise, EPIC is not generally seeking records about individuals who may be the target of criminal investigations, it is seeking records about individuals who are exercising their Constitutional rights. Furthermore, the government has not explained the harm that would result from disclosure of such records, as required under Exemption 7(A).
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The core EPIC's FOIA requst seeks information about the surveillance of individuals who have demonstrated interest in, or expressed support for, WikiLeaks. Many individuals have viewed documents published by WikiLeaks, donated money to the organization, spoken out in support of WikiLeaks or its sources, or otherwise associated themselves with the organization. These activities are all protected under the First Amendment. Speech in support of WikiLeaks or individuals associated with it involves matters of public concern, and therefore 'occupies the the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.' Connick v. Myers, 461 U.S. 138, 145 (1983) (internal quotation marks omitted). The fact that such expressions might take the form of monetary donations to WikiLeaks does not diminish th
First Amendment issues at stake. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S. Ct. 876, 898 (2010) (applying strict scrutiny to a law prohibiting corporate independent expenditures). Supporters of WikiLeaks are protected by the First Amendment even if some members of the organization may be engaged in unlawful activity. See NAACP. v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982) ('The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected'). Finally, individuals who attempt to access documents released by WikiLeaks are exercizing their 'right to receive information and ideas.' Kleindienst v. Mandel, 408 U.S. 753, 762 (1972).
EPIC accepts that a portion of the responsive records relate to legitimate law enforcement investigations. However, a fair reading of EPIC's FOIA request makes clear that many documents fall outside the exemptions claimed and relate to the surveillance of individuals who are engaging in First Amendment activities. [Footnote] 14 [Footnote 14 'The FBI claims that it is not 'investigating' individuals who merely support WikiLeaks. Hardy Decl., Dkt. 12, Ex. 2, at 8 n.3. But the key question is whether records exist, not what the government's investigatory intent is. The FBI's statement provides no information aout whether such records might nevertheless find their way into the FBI's databases (through inter-agency transfers, for example), or whether an otherwise legitimate investigation might have been exceeded its bounds. And it says nothing about the activities or records maintained by CRM or NSD.'
[Footnote 15] The government also relies on Sections 1.4(b) and 1.4(d), claiming that they require nondisclosure of the identities of particular foreign governments and related information in order to protect cooperative endeavors and preserve 'the fragile relationships that exist between the United States and certain forign governments.' defs.' Mot. Summ. J. Dk. 12, at 19, 20. However, the identities of some foreign governments, and information about their role (or the lack thereof) in this case have been made public. See Raphael Satter, Minister: Iceland refused to help FBI on WikiLeaks, Associated Press (Feb. 1, 2013), http://news.msn.com/world/minister-iceland-refused-to-help-fbi-on-wikileaks. This publicly-disclosed information should thus be released to EPIC. |
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Name(s:) |
Marc Rotenberg, Ginger McCall, David Jacobs |
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Agency(ies): |
Electronic Privacy Information Center, EPIC |
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Url: |
Url Link
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Title: |
Cross MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(McCall, Ginger) (Entered: 03/04/2013) |
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Concerning: |
"Epic FOIA, Criminal Division, National Security Division, Federal Bureau of Investigation, FBI, Department of Justice |
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