Court Says Government Can Continue To Withhold Six 'Significant' FISA Court Opinions In Their Entirety

The EFF's attempt to force critical FISA court opinions out of the DOJ's hands has been rejected by a California federal court. The EFF was seeking to obtain unreleased FISA opinions by utilizing some of the new review requirements enacted with the USA Freedom Act. Unfortunately, the court has rejected the EFF's compound argument, as Aaron Mackey explains:

Although the court did not rule on whether USA Freedom requires the government to review and disclose significant FISC opinions created before May 2015, it decided that EFF could not rely on USA Freedom's transparency provisions while seeking FISC opinions as part of a Freedom of Information (FOIA) lawsuit. The ruling also upheld the government's decision to completely withhold six significant FISC opinions based on the government's claims that disclosing even a single word would jeopardize national security.

If there's any good news in this decision [PDF], it's the court taking a pass on the retroactivity issue, rather than offering judicial backing for the DOJ's opacity. Nothing in the law suggests the new FISA opinion review process only affects opinions created after the law went into effect. The law's language simply states that "each" significant FISA decision must undergo a declassification review. There's no time limit inherent to "each" significant decision, but the DOJ has chosen to read the language in a way that's most beneficial to it. With the court not giving its explicit blessing to the DOJ's interpretation, it can still be challenged.

That's pretty much the end of the good news. While the EFF has managed to pry loose 70 significant decisions, the government still wants to fully withhold six of them. The EFF argued that the review requirement prevents the DOJ from relying on blanket FOIA exceptions to keep these from being released. As the EFF pointed out, the government has offered no evidence these opinions have ever undergone a declassification review.

The court likes the argument, but doesn't agree with the EFF's assertions.

Although Plaintiff presents a creative argument, the Court agrees with Defendant that Plaintiff cannot enforce Section 402 [the declassification review] through this FOIA action. See Dkt. No. 69 at 2. While courts have not addressed this specific issue, the Court is persuaded by the decisions of courts interpreting FOIA's relationship with other disclosure statutes.

[...]

Absent clear evidence that Congress intended Section 402 to be applied when reviewing FOIA exemptions, the Court will not impute such an intent to hybridize two statutory schemes. [...] The purpose of Section 402 was to allow for more transparency of FISC and FISCR opinions by requiring the Director of National Intelligence and the Attorney General to release information that they determined were not classified, not to override "the ability of the government to claim proper FOIA exemptions."

The court also says the government's use of blanket exemptions is proper. It bases this on its own limited experience with national security issues.

Recognizing the Court's "limited institutional expertise on intelligence matters," see Hamdan, 797 F.3d at 770, the Court accords substantial weight to Ms. Gaviria's representation that "disclosure of this information could reasonably be expected to cause serious damage, and in some instances, exceptionally grave damage to the national security of the United States." See Gaviria Decl. 30. In the area of national security, "it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency."

With that bit of deference, the court declares the government to be the winner -- at least in terms of these six withheld decisions. Unfortunately, this means the government can continue to pretend it doesn't have to review old decisions until the court -- or Congress -- tells it otherwise.