Case 1:16-cv-08215-WHP Document 1 Filed 10/20/16 Page 1 of 17
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
COLOR OF CHANGE and CENTER FOR CONSTITUTIONAL RIGHTS,
Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, and FEDERAL BUREAU OF INVESTIGATION,
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., seeking declaratory, injunctive, and other appropriate relief to compel the Defendants, the United States Department of Homeland Security (“DHS”) and the Federal Bureau of Investigation (“FBI”) (collectively “Defendants”), to produce agency records that have been improperly withheld from Plaintiffs, Color of Change (“COC”) and the Center for Constitutional Rights (“CCR”) (collectively “Plaintiffs”). 2. Plaintiffs’ submitted a FOIA request to Defendants on July 5, 2016, seeking records related to federal government surveillance and monitoring of protest activities related to the Movement for Black Lives (“MBL”). See July 5, 2016 FOIA Request Letter from COC and CCR (“Request”), attached as Exhibit A. The Request documented the compelling and urgent need for public disclosure of information related
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to federal responses to public protests. Plaintiffs’ sought expedited processing and a fee waiver.
3. Police violence, criminal justice, and racial inequity are now the subjects of an impassioned national, political debate. MBL has played a significant role in bringing this discussion to the forefront by holding demonstrations in cities throughout the country, often in response to deadly police shootings of Black people.
4. Government documents, news reports, and first-hand accounts demonstrate that Defendants and state and local law enforcement agencies (“LEAs”) have engaged in the surveillance and monitoring of MBL demonstrations and individual activists aligned with the movement.
5. Surveillance undertaken by Defendants and LEAs to monitor MBL activities has relied on tactics and measures commonly reserved for counterterrorism and national security related purposes.
6. Monitoring MBL’s legitimate protest activities with the same surveillance methods used to target and disrupt potential terrorists undermines the First Amendment’s robust protection of political speech. Specifically, Defendants’ surveillance and monitoring practices chill valuable public debate about police violence, including the use of deadly force, criminal justice, and racial inequities.
7. Surveillance and monitoring of MBL protesters and leaders’ activities also may impinge on their reasonable expectations of privacy in violation of the Fourth Amendment.
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8. The public has a vital interest in knowing the nature and extent of Defendants’ surveillance of constitutionally protected speech and expression. Desire for secrecy should not shield potential constitutional violations.
9. Under FOIA, the public has a statutory right to records relating to Defendants’ surveillance of MBL, including its activists and leaders, in order to assess whether they are legitimate.
10. Plaintiffs bring this action to compel Defendants to release records responsive to Plaintiffs’ Request.
JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties under 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction under 28 U.S.C. §§ 1331 and 1346(a)(2). 12. Venue is proper under 5 U.S.C. § 552(a)(4)(B), 28 U.S.C. §§1391(e) and 1402(a) because COC and CCR reside in this district. 13. Because the Defendants have failed to comply with the time limits imposed by FOIA, Plaintiffs have exhausted their administrative remedies. 5 U.S.C. § 552(a)(6)(C)(i). Plaintiffs are therefore entitled to appeal directly to this Court for relief. 5 U.S.C. § 552(a)(4)(B).
PARTIES 14. Plaintiff COC is a nonprofit civil rights advocacy and communications organization within the United States. COC and its website www.ColorofChange.com seek to strengthen Black America’s political voice and its mission is to empower its members to make the government and corporations more responsive to the concerns of
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Black Americans. COC seeks to bring about positive political and social change for everyone. By and through the Internet, public events, and advertisements calling for the news media to cover highlighted issues, COC aims to keep the public informed about the most pressing issues for Black Americans and gives them a way to act.
15. Plaintiff CCR is a New York-based nonprofit legal and public education organization that engages in litigation and public advocacy. CCR regularly publishes informational materials to raise public awareness in the fields of civil rights, and domestic and international human rights through its dedicated Development, Communications, and Legal & Advocacy Departments and staff. CCR also disseminates information through CCR’s website, http:// ccrjustice.org, and through social media platforms.
16. Defendant DHS is a Department of the Executive Branch of the United States Government and is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). DHS is tasked with, among other things, preventing terrorist attacks and safeguarding the border and cybersecurity.
17. Defendant FBI is a component of the United States Department of Justice (“DOJ”). DOJ is a Department of the Executive Branch of the United States Government and is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). The FBI is tasked with, among other things, protecting against terrorist and foreign intelligence threats and providing leadership and criminal justice services to local law enforcement.
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STATEMENT OF FACTS Background on the Movement for Black Lives 18. On August 9, 2014, 18-year-old Michael Brown was shot and killed by Darren Wilson, a police officer in Ferguson, Missouri. For weeks after Michael Brown’s death, thousands took to the streets to protest police violence and to demand racial justice. 19. The public outcry in response to Michael Brown’s death transformed MBL into a movement with national scope and influence. Since August 2014, in response to more high-profile killings of Black people by police officers, MBL has continued to draw public attention to police violence and to advocate for policing reform and racial justice. 20. Among other constitutionally protected strategies, concerned citizens and organizers with MBL have protested publicly, held vigils, and demonstrated. Indeed, over 1000 MBL demonstrations were held throughout the United States in the last two years. 11 Major Misconceptions about the Black Lives Matter Movement, Blacklivesmatter.com, available at http://blacklivesmatter.com/11-major-misconceptionsabout-the-black-lives-matter-movement/ (last visited Oct. 19, 2016). 21. Through these actions, MBL has made issues of police violence, criminal justice, and racial inequity a priority in national dialogue and policy discussions. Nationwide Surveillance of Movement for Black Lives Activities 22. Immediately following the killing of Michael Brown, the Federal Emergency Management Agency (“FEMA”) tracked social media usage to monitor the protests in Ferguson. DHS also shared information with LEAs as vigils commemorating
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Michael Brown spread to other major cities throughout the United States. See George Joseph, Exclusive: Feds Regularly Monitored Black Lives Matter Since Ferguson, The Intercept (July 24, 2015), available at https://theintercept.com/2015/07/24/documentsshow-department-homeland-security-monitoring-black-lives-matter-since-ferguson/ (last visited Oct. 19, 2016).
23. In 2015, The Intercept obtained documents through FOIA demonstrating that, as early as August 2014, Defendants and local LEAs had begun routinely surveilling and sharing information about MBL protests. Id.
24. Publicly disclosed DHS reports reveal substantial coordination between Defendants and local LEAs in the surveillance of MBL activities through facilities known as fusion centers. Following arrests of MBL demonstrators in Boston in November 2014, reports surfaced that local LEAs prepared for the protests by monitoring MBL-related social media posts at the Commonwealth Fusion Center, a facility that provides “information sharing among local, state and federal public safety agencies and private sector organizations . . . of intelligence relevant to terrorism and public safety.” Commonwealth Fusion Center, Mass.gov, available at http://goo.gl/KL7uLr (last visited Sep. 24, 2016).
25. Press reports describe how the New York Police Department, the Metropolitan Transit Authority’s counterterrorism unit, and the FBI’s Joint Terror Task Force coordinated efforts to surveil protests against police violence that took place in New York. See Alex Kane, How the NYPD’s Counterterrorism Apparatus is Being Turned on Protestors, Vice (Jan. 18, 2015), available at http://goo.gl/XGyybG (last visited Oct. 19, 2016); George Joseph, Undercover Police Have Regularly Spied on
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Black Lives Matter Activists in New York, The Intercept (Aug. 18, 2015), available at http://goo.gl/KFMmU3 (last visited Oct. 19, 2016).
26. Activists in Chicago uncovered evidence that the Chicago Police Department used cell-phone interceptor (or “Stingray”) technology to surveil MBL protests in 2014. See Mike Krauser, Activists Say Chicago Police Used “Stingray” Eavesdropping Technology During Protests, CBS Chicago (Dec. 6, 2014), available at http://goo.gl/BvCfBB (last visited Oct. 19, 2016).
22. In April 2015, California Highway Patrol emails revealed that it had coordinated with the California State Threat Assessment Center—another fusion center coordinating intelligence about criminal and terrorist activity among local, state, and federal LEAs—to monitor the social media accounts of MBL protesters. See Darwin Bond Graham, Counter-Terrorism Officials Helped Track Black Lives Matter Protesters, East Bay Express (Apr. 15, 2015), available at http://goo.gl/xLQBFV (last visited Oct. 19, 2016).
27. That same month, DHS’s Network Operations Center advised that it was monitoring “protest” activities in Baltimore, citing social media as the source of information about the events. These activities included a Funk Parade, a breast cancer awareness walk, and a community parade in the historically Black Congress Heights neighborhood. See George Joseph, Exclusive: Feds Regularly Monitored Black Lives Matter Since Ferguson, The Intercept (July 24, 2015), available at http://goo.gl/AatBmP (last visited Oct. 19, 2016).
28. In August 2015, journalists disclosed a report by a Baltimore cybersecurity firm ZeroFox, which has coordinated on briefings with the FBI, that identified a
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prominent activist associated with MBL as a “threat actor” requiring “continuous monitoring” to ensure public safety. Brandon Ellington Patterson, Black Lives Matters Organizers Labeled as “Threat Actors” by Cybersecurity Firm, Mother Jones (Aug. 3, 2015), available at http://goo.gl/ZlDZhu (last visited Oct. 19, 2016).
29. In April 2016, the Oregon Department of Justice (“ODOJ”) released a report detailing the use of social media to track MBL activity by its Criminal Intelligence Unit, the division that houses Oregon’s TITAN Fusion Center. Using social media monitoring software, an ODOJ official ran keyword searches on the terms “#blacklivesmatter” and “#fuckthepolice.” Oregon’s Attorney General ordered an investigation into the use of the software after a top civil rights lawyer within ODOJ was himself identified as a possible threat to law enforcement based only on the keyword search results. See Denis C. Theriault, Black Lives Matter: Rap Group Logo Helped Spark Racial Profiling Scandal, Oregon Live (Apr. 11, 2016), available at http:// goo.gl/Wi2zCw_(last visited Oct. 19, 2016).
30. In July 2016, DHS and FBI agents visited MBL activists and community organizers in Cleveland prior to the Republican National Convention. Agents questioned activists about their plans, sending the unnerving message that Defendants were monitoring individual activists and would surveil protests. See Alice Speri, FBI and Police are Knocking on Activists’ Doors Ahead of Republican National Convention, The Intercept (June 23, 2016), available at http:// goo.gl/E1Y2Cl (last visited Oct. 19, 2016).
31. DHS Secretary Jeh Johnson has openly acknowledged the extensive coordination between DHS and local LEAs. In an interview in July 2016, he discussed DHS’s role in ensuring uniform LEA responses to protest activity, highlighting grants
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provided by DHS for surveillance, communications, and training at federal law enforcement centers. See Daniella Diaz, DHS Secretary Jeh Johnson Backs Local Law Enforcement, Says Tactics Should be Reviewed, CNN (July 10, 2016), available at http:// http://www.cnn.com/2016/07/10/politics/jeh-johnson-dallas-shooting-reaction-reaction/ (last visited Oct. 19, 2016).
32. In August 2016, the FBI responded to a separate FOIA request by the American Civil Liberties Union (ACLU) and the Baltimore Sun and released surveillance footage collected in Baltimore in 2015. The footage included video recorded by FBI aircraft conducting surveillance flights over Baltimore during MBL protests. See Kevin Rector, FBI Releases ‘Complete Collection’ of Surveillance Videos from Baltimore Protests, Unrest, The Baltimore Sun (Aug. 4, 2016), available at http:// goo.gl/TqJOCe (last visited Oct. 19, 2016).
33. In October 2016, the ACLU confirmed that LEAs have used social media surveillance software to monitor activists and protesters. Documents released to the ACLU of California revealed that a number of LEAs relied on Geofeedia, a company that provided real-time data pulled from protestors’ social media feeds, to track protests in Ferguson and Baltimore following the deaths of Michael Brown and Freddie Gray. Facebook, Twitter, and Instagram have since blocked Geofeedia’s access to their specialized data streams after the publication of reports regarding the company’s relationship with LEAs. See Craig Timberg & Elizabeth Dwoskin, Facebook, Twitter and Instagram Sent Feeds that Helped Police Track Minorities in Ferguson and Baltimore, Report Says, The Washington Post (Oct. 11, 2016), available at http://goo.gl/Bbwi2b (last visited Oct. 19, 2016).
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Continuing Police Violence and Protests Accentuate the Urgency of Plaintiffs’ Request
34. In the months since Plaintiffs filed their Request, issues of police violence, criminal justice, and racial inequities have continued to garner national attention. An estimated 35 Black people were killed by police in August and September 2016 alone. See The Counted, The Guardian: Blog, https://www.theguardian.com/us-news/nginteractive/2015/jun/01/the-counted-police-killings-us-database (last visited Oct. 7, 2016). The fatal police shootings of Terence Crutcher in Oklahoma and Keith Scott in North Carolina in September 2016 have generated massive media coverage, prompted renewed protests, and elicited commentary from presidential candidates. See Liam Stack, Video Released in Terence Crutcher’s Killing by Tulsa Police, New York Times (Sep. 19, 2016), available at http://goo.gl/iZI1kL (last visited Oct. 19, 2016); Alan Smith, Hillary Clinton and Donald Trump Respond to Police Shootings in North Carolina and Oklahoma, Business Insider (Sep. 21, 2016), available at http://goo.gl/ph4Fxj (last visited Oct. 19, 2016).
35. Reports of Defendants’ monitoring and surveillance of MBL activists and protests raise concerns that Defendants are targeting First and Fourth Amendmentprotected activities based on race and political viewpoints in order to chill dissent.
36. The reported monitoring and surveillance recalls the U.S. government monitoring and surveillance of another generation of Black activists, including the Black Panther Party and Martin Luther King Jr., the revelations of which led to legal restrictions on domestic surveillance and increased oversight.
37. As the nation engages in critical discussions about police violence, criminal justice, and racial inequity, it is imperative for the public to understand the
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extent to which Defendants are surveilling the very movement and individuals that have pushed this discourse into the spotlight.
Plaintiffs’ FOIA Request 38. On July 5, 2016, Plaintiffs submitted their Request in accordance with 5 U.S.C. §§ 552 et seq. to Defendants DHS and FBI. See Exhibit A. 39. Plaintiffs requested information regarding policies and actions involving the monitoring and surveillance of public protests surrounding police violence, criminal justice, racial inequities, and the Movement for Black Lives. 40. Plaintiffs also requested records related to protests whose subject matter or theme involved police violence, criminal justice, racial inequities, or MBL (“Relevant Protests”). The requested records include communications and records concerning surveillance of the Relevant Protests and its participants by and between Defendants and LEAs in the jurisdiction of the Relevant Protests. 41. Plaintiffs sought expedited processing of the Request under 5 U.S.C. § 552(a)(6)(E)(i)(I), because there is a “compelling need” to inform the public of the policies and decision-making regarding government involvement in surveillance and monitoring of peaceful protestors, activists, and organizers. 42. Plaintiffs sought a fee waiver on the basis that “disclosure of the requested materials is in the public interest because it is likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest” of the Plaintiffs. 5 U.S.C. § 552(a)(4)(A)(iii).
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43. Plaintiffs also sought the fee waiver on the basis that Plaintiff COC constitutes a “representative of the news media” and the requested records were not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II).
Defendant DHS’s Response 44. On July 18, 2016, DHS’s Privacy Office (“PRIV”) sent a letter to Plaintiffs acknowledging receipt of Plaintiffs’ Request. The letter did not include a determination as to whether DHS would comply with Plaintiffs’ Request by producing agency records. See Exhibit B. 45. DHS denied Plaintiffs’ request for expedited treatment, asserting that Plaintiffs do not qualify for expedited processing under 6 C.F.R. § 5.5(d)(1)(i) or 6 C.F.R. § 5.5(d)(1)(ii). 46. DHS conditionally granted Plaintiffs’ request for a fee waiver, but denied Plaintiffs’ request for designation as a representative of the news media in accordance with 6 C.F.R. § 5.11(b)(6) and 6 C.F.R. § 5.11(k)(2). 47. DHS informed Plaintiffs of the possibility of a delay in the process of the Request due to DHS receiving an increased number of FOIA requests. The normal statutory limit to respond to a Request is 20 business days, but FOIA permits a 10-day extension of the time period in “unusual” circumstances. 5 § U.S.C. § 552(a)(6)(B). DHS invoked the 10-day extension for Plaintiffs’ Request pursuant to 5 U.S.C. § 552(a)(6)(B). However, no response followed from any component of DHS within ten days. 48. DHS referred Plaintiffs’ Request to the Federal Emergency Management Agency (FEMA), Federal Law Enforcement Training Center (FLETC), Office of
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Intelligence and Analysis (I&A) and National Protection and Programs Directorate (NPPD).
49. On August 23, 2016, Plaintiffs appealed DHS’s decisions to deny expedited processing of the Request and to do no more than conditionally grant a fee waiver. 6 C.F.R. § 5.9(c). See Exhibit C.
50. On August 29, 2016, DHS acknowledged that it had received Plaintiffs’ appeal of its decisions to deny expedited processing and conditionally permit a fee waiver. See Exhibit D. However, DHS has thus far failed to respond to this appeal.
51. On September 27, 2016, Plaintiffs received a response (dated September 20, 2016) from the Office of Intelligence & Analysis (“OIA”), a component of DHS. OIA claimed that a search of its files revealed no records responsive to Plaintiffs’ Request. See Exhibit E. The response is silent as to whether responsive records exist within any other DHS component.
52. On October 10, 2016, Plaintiffs filed an appeal of OIA’s determination based on its failure to perform an adequate search for records and its improper reliance on FOIA exemptions to avoid searching for, or producing, responsive records. See Exhibit F.
53. On October 20, 2016, Plaintiffs received an acknowledgment from DHS regarding Plaintiffs’ appeal of DHS-OIA’s response of September 20, 2016. See Exhibit G.
54. Plaintiffs have received no other response or correspondence from any other component of DHS. With the exception of OIA, DHS has failed to make a determination about whether to comply with Plaintiffs’ July 5, 2016, Request within the
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30-day statutory time limit established by FOIA. 5 U.S.C. § 522(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B); 6 C.F.R. § 5.5(a).
55. Because DHS has both failed to respond to Plaintiffs’ Request within the statutory timeframe and to respond expeditiously to Plaintiffs’ Appeal, Plaintiffs are deemed to have exhausted their administrative remedies with respect to their Request to DHS. 5 U.S.C. § 522(a)(6)(C)(i); 6 C.F.R. § 5.5(a).
Defendant FBI’s Response 56. In a letter dated July 28, 2016, the FBI acknowledged receipt of Plaintiffs’ Request. The letter did not include a determination as to whether the FBI would comply with Plaintiffs’ Request by producing agency records. See Exhibit H. 57. The FBI granted Plaintiffs’ request for expedited processing pursuant to 28 C.F.R. § 16.5(e)(1)(iv), but did not indicate whether processing had begun or when it would be complete. See Exhibit H. 58. On September 20, 2016, Plaintiffs sent the FBI a letter requesting that the FBI notify Plaintiffs of when to expect to receive documents responsive to their Request. See Exhibit I. 59. To date, Plaintiffs have received no further response or correspondence from the FBI. 60. By purporting to grant Plaintiffs’ request for expedited processing, but failing to respond to Plaintiffs’ Request otherwise or to produce responsive documents, the FBI has failed to make a determination about Plaintiffs’ Request within the 20-day statutory time limit established by FOIA. 5 U.S.C. § 522(a)(6)(A)(i); 28 C.F.R. § 16.5(e)(4).
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61. Plaintiffs are therefore deemed to have exhausted their administrative remedies with respect to their Request to the FBI. 5 U.S.C. § 522(a)(6)(C)(i).
62. Plaintiffs have a statutory right to the records sought and there is no legal basis for Defendants’ failure to disclose them in full.
63. Defendants must comply with their statutory obligations and release information to the public about the surveillance and monitoring of MBL in response to Plaintiffs’ Request.
FIRST CLAIM FOR RELIEF Defendants DHS and FBI Violated FOIA by Failing to
Produce Records Responsive to Plaintiffs’ Request 64. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 63 as if repeated and incorporated herein. 65. Defendants’ failure to timely respond to the Plaintiffs’ Request violated the Plaintiffs’ rights under FOIA, 5 U.S.C. § 552(a)(6)(A), and Defendants’ corresponding regulations. 66. Defendants’ failure to promptly make records available in response to Plaintiffs’ Request violated the Plaintiffs’ rights under FOIA, 5 U.S.C. § 552(a)(3), and Defendants’ corresponding regulations.
SECOND CLAIM FOR RELIEF Defendant DHS Improperly Denied Plaintiffs’ Request for Expedited Processing 67. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 63 as if repeated and incorporated herein.
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68. By denying Plaintiffs’ request for expedited processing, Defendant DHS violated Plaintiffs’ rights under FOIA, 5 U.S.C. § 552(a)(6)(E) and 6 C.F.R. § 5.5(d)(1).
THIRD CLAIM FOR RELIEF Defendant DHS Improperly Denied Plaintiffs’ Request for a Non-Conditional Fee Waiver 69. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 63 as if repeated and incorporated herein. 70. By denying Plaintiffs’ request for a non-conditional fee waiver, Defendant DHS violated Plaintiffs’ rights under FOIA, 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k). FOURTH CLAIM FOR RELIEF Defendant FBI Effectively Denied Plaintiffs’ Request for Expedited Processing 71. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 63 as if repeated and incorporated herein. 72. By purporting to grant Plaintiffs’ request for expedited processing, but failing to produce documents or even respond to Plaintiffs’ request for a time frame for production, Defendant FBI violated Plaintiffs’ rights under the FOIA, 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R§ 16.5.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Order Defendants immediately to make a full, adequate search for the
requested records;
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B. Order Defendants to disclose the requested records in their entirety and make copies available to Plaintiffs no later than ten days after the Court’s order, or in the alternative, order Defendants to engage in expedited processing of the Plaintiffs’ Request;
C. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees or costs for the processing of the FOIA Request;
D. Award Plaintiffs their costs and reasonable attorney’s fees incurred in this action as provided by 5 U.S.C. § 552(a)(4)(E); and
E. Grant such other and further relief as the Court may deem just and proper.
Respectfully submitted,
_/s/ Omar Farah____________ Omar Farah (OF-8886) Ghita Schwarz (GS-9554) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 (212) 614-6485 ofarah@ccrjustice.org _/s/ Avidan Y. Cover________ Avidan Y. Cover (AC-6478) Katelyn Pierce, Legal Intern (pending authorization) Galen Baynes, Legal Intern (pending authorization) MILTON A. KRAMER LAW CLINIC CENTER 11075 East Boulevard Cleveland, OH 44106 (216) 368-2766 ayc30@case.edu
DATED: October 20, 2016
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

:

COLOR OF CHANGE, et ano.,

:

:

Plaintiffs,

:

:

-against-

:

:

UNITED STATES DEPARTMENT OF

:

HOMELAND SECURITY, et ano.,

:

:

Defendants. :

:

16cv8215 OPINION & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge: Color of Change and the Center for Constitutional Rights (together, “Plaintiffs”)
and the United States Department of Homeland Security (“DHS”) bring dueling motions for partial summary judgment in this Freedom of Information Act (“FOIA”) lawsuit. Plaintiffs seek disclosure of eight draft versions of a never-finalized intelligence assessment, as well as a portion of an e-mail regarding that assessment. DHS contends the documents are protected under FOIA Exemptions 3, 5, and 6. For the reasons that follow, DHS’s motion for partial summary judgment is granted and Plaintiffs’ motion for partial summary judgment is denied.
BACKGROUND I. Facts
DHS’s Intelligence & Analysis Office (“I&A”) “gather[s] and share[s] intelligence information in support of DHS’s broader counterterrorism, homeland security, and component-specific missions.” (See Declaration of Arthur R. Sepeta, ECF No. 60 (“Sepeta Decl.”) ¶ 7.) As part of its mission, I&A “analyze[s] trends in terrorism affecting the United States, including domestic terrorism.” (Sepeta Decl. ¶ 22.)

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The documents that Plaintiffs seek are drafts of a proposed intelligence assessment created by an I&A analyst and intern in the spring of 2017. (Sepeta Decl. ¶¶ 18–19, 22–23, 31.) The assessment was titled “(U\\FOUO) Growing Frequency of Race-Related Domestic Terrorist Violence1,” and it “contemplated a survey of violent, terroristic acts that were driven by race-related extremist ideologies of varying stripes in order to assess developing trends in this space.” (Sepeta Decl. ¶¶ 22–23.) Most of the drafts contain comments and edits. (Sepeta Decl. ¶ 31.) No version was ever finalized or adopted. (Sepeta Decl. ¶ 32.) Rather, after going through the preliminary steps of I&A’s editorial review process, the agency chose to abandon the assessment. (Sepeta Decl. ¶ 32.) II. Procedural History
In July 2016, Plaintiffs submitted a FOIA request to both DHS and the Federal Bureau of Investigation (“FBI”)2 seeking documents related to government surveillance and monitoring of the Movement for Black Lives (“MBL”). (See Sepeta Decl., Ex. A, at 1.) DHS referred the request to I&A. (Sepeta Decl. ¶ 12 & Ex. B.) In September 2016, DHS informed Plaintiffs that it had located no responsive documents. (Sepeta Decl. ¶ 13 & Ex. C.)
In October 2016, after administratively appealing DHS’s determination, Plaintiffs filed this action. (Compl. ¶ 10.) In April 2017, based on the parties’ agreement, this Court entered a scheduling order directing I&A to process or produce 500 pages of documents responsive to Plaintiffs’ request per month. (Amended Scheduling Order, ECF No. 28.) The parties worked in good faith to resolve this action, and I&A made six rounds of productions. (Sepeta Decl. ¶ 17.)
1 “(U\\FOUO)” stands for “Unclassified \\ For Official Use Only.” The first draft was titled “(U\\FOUO) RaceRelated Domestic Terrorism Incidents Likely to Continue in 2017.” (Sepeta Decl. ¶ 22.) 2 The FBI is not implicated in these motions.
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In January 2018, the parties informed this Court that nearly all production issues had been resolved except for I&A’s withholding of the documents subject to this motion. (See January 25, 2018 Hearing Transcript, ECF No. 48, at 3:19–25.) DHS produced the drafts in fully redacted form. (Sepeta Decl. ¶ 19.) DHS also withheld a portion of a March 3, 2017 email sent by a senior analyst to the paper’s authors providing feedback and attaching an edited draft. (Sepeta Decl. ¶ 25.) Through other documents that DHS produced, Plaintiffs learned that this assessment had been referred to internally as the “Race Paper,” and therefore believed it may contain information relevant to their request.
In connection with its motion for partial summary judgment, DHS provided a Vaughn declaration prepared by Arthur R. Sepeta, Chief of the Privacy and Intelligence Oversight Branch of I&A. (See generally Sepeta Decl.) Sepeta oversees I&A’s FOIA responses. (Sepeta Decl. ¶ 3.) After oral argument, this Court also reviewed the disputed documents in camera. (See Memorandum & Order, ECF No. 64.)
DHS asserts that three FOIA exemptions protect production: (1) Exemption 5, as to all materials, (2) Exemption 3, as to portions of the materials, and (3) Exemption 6, as to names of I&A employees. Plaintiffs counter that DHS fails to show these exemptions apply and that this Court should order release of any segregable portions of the documents. As discussed below, Exemption 5 fully protects the documents Plaintiffs seek. Accordingly, this Court does not reach the other Exemptions.
LEGAL STANDARD FOIA actions are typically resolved through summary judgment. N.Y. Times v. U.S. Dep’t of Justice, 101 F. Supp. 3d 310, 317 (S.D.N.Y. 2015). The agency bears the burden to defend its non-disclosure. Main St. Legal Servs. v. Nat’l Sec. Council, 811 F.3d 542, 544 (2d
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Cir. 2016). A district court reviews an agency’s FOIA determinations de novo, N.Y. Times Co. v. U.S. Dep’t of Labor, 340 F. Supp. 2d 394, 400 (S.D.N.Y. 2004), and resolves all doubts in favor of disclosure, Assoc. Press v. U.S. Dep’t of Defense, 554 F.3d 274, 283 (2d Cir. 2009). FOIA enumerates nine exemptions. See 5 U.S.C. § 552(b). They are construed narrowly, as “disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
“Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and given reasonably detailed explanations why any withheld documents fall within an exception are sufficient to sustain the agency’s burden.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). “An agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible” and is “not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (citation and marks omitted).
“Even if portions of documents are exempt from disclosure, [FOIA] requires the Government to disclose ‘[a]ny reasonably segregable portion.’” ACLU v. FBI, 2015 WL 1566775, at *2 (S.D.N.Y. Mar. 31, 2015) (citing 5 U.S.C. § 552(b)). However, non-exempt portions need not be produced if “they are inextricably intertwined with exempt portions.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (citation omitted).
DISCUSSION I. Exemption 5
DHS contends the documents at issue are protected under Exemption 5 as they “contain information relating to intra-agency pre-decisional deliberations, including preliminary evaluations and recommendations of I&A personnel.” (Sepeta Decl. ¶ 26.) FOIA Exemption 5
4

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allows withholding of “inter-agency or intra-agency memorandums or letters that would not be available by law to a party.” 5 U.S.C. § 552(b)(5). One of the privileges this exemption covers is the “deliberative process privilege, a sub-species of work-product privilege that covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (citation omitted). The deliberative process privilege is meant to protect “the decisionmaking processes of the executive branch in order to safeguard the quality and integrity of governmental decisions.” Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991).
The privilege has two requirements: the document “must be both ‘predecisional’ and ‘deliberative.’” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999). “A document is predecisional when it is prepared in order to assist an agency decisionmaker in arriving at his decision,” such as “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Grand Cent. P’ship, 166 F.3d at 482 (citations and marks omitted). A court considers if the “document precedes, in temporal sequence, the decision to which it relates.” Seife v. U.S. Dep’t of State, 298 F. Supp. 3d 592, 614 (S.D.N.Y. 2018) (citation omitted).
A document is deliberative when it is “actually related to the process by which policies are formulated.” Hopkins, 929 F.2d at 84 (citation and alterations omitted). Accordingly, the privilege does not protect “a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment.” Citizens Union of City of N.Y. v. Attorney Gen. of N.Y., 269 F. Supp. 3d 124, 158
5

Case 1:16-cv-08215-WHP Document 67 Filed 07/09/18 Page 6 of 12
(S.D.N.Y. 2017). Additionally, courts consider if the document “formed an essential link in a specified consultative process” and “if released, would inaccurately reflect or prematurely disclose the views of the agency.” Seife, 298 F. Supp. 3d at 614 (citation and marks omitted).
According to Sepeta, the drafts at issue were a “proposed intelligence assessment that was never finalized or disseminated outside of I&A.” (Sepeta Decl. ¶ 27.) They were created by staff without “final decision-making authority for [DHS],” meaning release would “expose the exchange of ideas and suggestions that accompany I&A’s . . . preliminary assessments.” (Sepeta Decl. ¶¶ 31, 33.) After they were drafted, the documents “only went through part of I&A’s editorial review process and w[ere] not close to finalization” before being terminated. (Sepeta Decl. ¶ 32.)
Regarding whether they are deliberative, Sepeta represents that papers such as these are “broadly disseminated [by I&A] to inform policy decisions, threat prioritization, and resource planning and allocation” among various policymakers, and provide guidance for “DHS actions and intelligence collection efforts against violent extremist actors.” (Sepeta Decl. ¶ 30.) The withheld portion of the March 3 email provided a senior analyst’s “candid feedback” and suggested revisions to the paper’s authors. (Sepeta Decl. ¶¶ 25, 38.)
Based on that description and this Court’s in camera review, Exemption 5 protects these documents. “It is well-settled that draft documents, by their very nature, are typically predecisional and deliberative. They reflect only the tentative view of their authors; views that might be altered or rejected upon further deliberation by their authors or by their superiors.” Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479, 518 (S.D.N.Y. 2010) (citation omitted); see Nat’l Council of La Raza v. Dep’t of Justice, 339 F. Supp. 2d 572, 583 (S.D.N.Y. 2004) (“Drafts and comments on documents are quintessentially predecisional and deliberative.”); NAACP
6

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Legal Def. & Educ. Fund, Inc. v. U.S. Dep’t of Hous. & Urban Dev., 2007 WL 4233008, at *11 (S.D.N.Y. Nov. 30, 2007) (same).
These papers, prepared by an analyst and intern, reflect the preliminary processes through which DHS policy is created. Release would reveal the give-and-take through which agencies ultimately reach their positions. It would display I&A’s internal considerations on whether to issue the assessment and what form it should take. Therefore, release “might mislead the public as to [the agency’s] reasoning, which it is entitled to keep private in the spirit of free discussion in the policy-making process.” Robert v. Dep’t of Health & Human Servs., 2005 WL 1861755, at *4 (E.D.N.Y. Aug. 1, 2005).
Similarly, the March 3 email provided guidance on how to alter the proposed assessment, including recommendations for other information to include. It was therefore predecisional, in that it reflects initial discussions preceding a final paper, and deliberative, in that it reflects the process through which policy papers are created. See N.Y. Times Co. v. U.S. Dep’t of Defense, 499 F. Supp. 2d 501, 515 (S.D.N.Y. 2007) (email was predecisional and deliberative as it “comment[ed] on a draft . . . paper and raise[d] a possible issue to be considered”) (citation and marks omitted); La Raza, 339 F. Supp. 2d at 584 (email exchange regarding draft was protected as it showed “comments produced and exchanged before a final [document] is released”); cf. MacNamara v. City of N.Y., 249 F.R.D. 70, 85 (S.D.N.Y. 2008) (ordering production of emails concerning “routine operating decisions rather than policy oriented judgments”) (marks and alterations omitted).
Plaintiffs contend that DHS fails to pinpoint a decision or policy to which the papers contributed. But an agency need not “identify a specific decision in connection with which a memorandum is prepared.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18
7

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(1975); see Tigue, 312 F.3d at 80 (“[T]he fact that the government does not point to a specific decision made by [the agency] does not alter the fact that the Memorandum was prepared to assist [the agency’s] decisionmaking on a specific issue.”). Rather, agencies are perennially “engaged in a continuing process of examining their policies,” which requires “generat[ing] memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process.” Sears, Roebuck & Co., 421 U.S. at 151 n.18. Sepeta explains that reports like these are created to be “broadly disseminated to inform policy decisions,” which show they are deliberative. (See Sepeta Decl. ¶ 30.)
Plaintiffs also maintain that the last version of the draft paper became “final,” making it no longer predecisional. This contention has been rejected by both the Second and D.C. Circuits. “There may be no final agency document because a draft died on the vine. But the draft is still a draft and thus still pre-decisional and deliberative.” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014) (“A privilege contingent on later events—such as whether the draft ultimately evolved into a final agency position—would be an uncertain privilege [and] little better than no privilege at all.”) (citation and marks omitted); see also ACLU v. U.S. Dep’t of Justice, 844 F.3d 126, 133 (2d Cir. 2016) (even though document was “never published,” it was still a “draft and for that reason predecisonal”); Nat. Res. Def. Council, Inc. v. Nat’l Marine Fisheries Serv., 409 F.Supp.2d 379, 384 (S.D.N.Y. 2006) (same).
Indeed, Plaintiffs’ conflation of a “final” draft with a final agency assessment poses the very risk that the deliberative process privilege is meant to protect against—public confusion over agency official policy, which may chill frank and candid discussion among government employees. See Russell v. Dep’t of Air Force, 682 F.2d 1045, 1049 (D.C. Cir.
8

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1982) (recognizing “the tendency of the public to assume that a memorandum generated within an agency . . . reflects the position of the agency”). II. Segregability
Under FOIA, this Court must ensure no reasonably segregable portions of the documents can be produced. See 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any person . . . after deletion of the portions which are exempt under this subjection.”) A “district court must make specific findings of segregability regarding the documents to be withheld.” Sussman, 494 F.3d at 1116; see also Hopkins, 929 F.2d at 85–86 (remanding case for consideration on whether factual data “could reasonably be segregated from the privileged material”).
Exemption 5 “does not . . . as a general matter, cover ‘purely factual’ material.” Grand Cent. P’ship, 166 F.3d at 482. But “[w]here . . . disclosure of even purely factual material would reveal an agency’s decision-making process Exemption (b)(5) applies.” Russell, 682 F.2d at 1048. This occurs “where factual information is intertwined with deliberative policy discussions,” such that disclosure of factual portions would show “the protected deliberations.” ACLU v. Dep’t of Defense, 2017 WL 4326524, at *7 (S.D.N.Y. Sept. 27, 2017).
The drafts at issue contain factual information—namely, references to and descriptions of domestic terrorism incidents. The paper’s authors use those events to support and provide examples for the conclusions they reach. DHS contends that these facts still show “which data [I&A chose] to include or remove during the drafting process and how to weigh that data.” (Sepeta Decl. ¶ 34.)
After reviewing the documents, this Court agrees. Even the factual portions of the drafts demonstrate DHS’s deliberative process. They show the authors’ judgment in
9

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“cull[ing] the relevant documents, extract[ing] pertinent facts, [and] organiz[ing] them to suit a specific purpose.” See Nat’l Sec. Archive, 752 F.3d at 465 (citation omitted). The factual materials do not exist in a vacuum. Rather, they are interwoven with the papers’ policy judgments. Therefore, release would reveal the process by which “factual material was assembled through an exercise of judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993); see also Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 161 F. Supp. 3d 120, 132 (D.D.C. 2016) (holding factual portions of letter would reveal “editorial judgments”).
As multiple courts have recognized, the factual/deliberative divide is not always black and white. Instead, “the key question . . . [is] whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Dudman Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). Here, the factual portions may have originated from public sources. But an analyst and intern compiled and arranged those materials to support the positions they espoused. In such an amalgam, the factual portions of the drafts at issue are equally deliberative. Cf. Lead Indus. Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70, 83 (2d Cir. 1979) (denying release of summaries prepared in agency rule making process as the drafters “were asked to draw inferences and weigh . . . evidence”).
Plaintiffs allude to the possibility that this Court only order release of the factual portions of the final iteration of the paper, contending this would not show which facts were added or removed during the drafting process. But this would still show the authors’
10

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determinations of which facts were worthy of inclusion, regardless of what was included in earlier drafts.
Plaintiffs also contend that this reading of segregability threatens to swallow the rule, meaning that an agency will always contend that segregable factual data displays its editorial judgments. However, there are certain situations where a factual narrative would not reveal editorial judgments. See Mapother, 3 F.3d at 1539 (denying privilege to section of report that was “in substance an inventory, presented in chronological order”); Leopold v. CIA, 89 F. Supp. 3d 12, 22 (D.D.C. 2015) (“Straightforward, mechanical recitations of fact . . . will generally fall outside of the privilege.”). That is not the case here, where “the facts are so intertwined with a policy recommendation and thereby embody the judgment of its author.” Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 371 (E.D.N.Y. 2009); see Bishop v. U.S. DHS, 45 F. Supp. 3d 380 (S.D.N.Y. 2014) (disclosure would “implicitly suggest [what] factors played a role in [agency’s] analysis”). Ultimately, Plaintiffs voice a valid concern, but that concern fails to outweigh the case law supporting DHS’s position. III. Vaughn Declaration
Initially, Plaintiffs asserted that DHS’s Vaughn index was deficient. (See Declaration of Omar Farah in Support of Plaintiffs’ Motion for Summary Judgment, ECF No. 56, Ex. 8.) In the wake of the Sepeta Declaration, Plaintiffs appear to abandon that argument. Nevertheless, to the extent that Plaintiffs contend the Sepeta Declaration is deficient, this Court holds that it satisfies DHS’s burden to provide “a relatively detailed analysis of the withheld material in manageable segments without resort to conclusory and generalized allegations of exemptions.” Halpern v. FBI, 181 F.3d 279, 290 (2d Cir. 1999) (citing Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)) (marks and alterations omitted).
11

Case 1:16-cv-08215-WHP Document 67 Filed 07/09/18 Page 12 of 12 CONCLUSION
For the foregoing reasons, DHS’s motion for partial summary judgment is granted and Plaintiffs’ motion for partial summary judgment is denied. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 54 and 58. The parties are directed to submit a joint status report by August 8, 2018. Dated: July 9, 2018
New York, New York
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Dated: August 8, 2018 New York, New York

 </s> Case 1:16-cv-08215-WHP Document 84 Filed 04/04/19 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
COLOR OF CHANGE and CENTER FOR CONSTITUTIONAL RIGHTS,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY and FEDERAL BUREAU OF INVESTIGATION,
Defendants.

No. 16 Civ. 8215 (WHP)

STIPULATION AND [PROPOSED] ORDER OF SETTLEMENT AND DISMISSAL WHEREAS, Plaintiffs filed a complaint in this action seeking the release of certain
records by the United States Department of Homeland Security (“DHS”) and the Federal Bureau of Investigation (“FBI”) (together, “Defendants”), pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”);
WHEREAS, the allegations in the complaint concern FOIA requests dated July 5, 2016, that Plaintiffs submitted to Defendants (the “FOIA Requests”);
WHEREAS, DHS (specifically, its components the Federal Emergency Management Agency (“FEMA”), the Office of Intelligence and Analysis (“I&A”), and the Cybersecurity and Infrastructure Security Agency (“CISA”), previously known as the National Protection and Programs Directorate1)) and FBI searched for, processed, and released non-exempt portions of records responsive to the FOIA Requests;

1 In accordance with the Cybersecurity and Infrastructure Security Agency Act of 2018, on November 16, 2018, the DHS National Protection and Programs Directorate became the Cybersecurity and Infrastructure Security Agency. See Pub. L. No. 115-278, 132 Stat. 4168, 4169 (2018).

Case 1:16-cv-08215-WHP Document 84 Filed 04/04/19 Page 2 of 4
WHEREAS, in March 2018 and April 2018, the parties filed cross-motions for partial summary judgment relating to the exemptions claimed by DHS with respect to certain documents produced by DHS with redactions in full or in part (collectively, the “Challenged Documents”);
WHEREAS, by Opinion and Order dated July 9, 2018 (Dkt. No. 67), the Court upheld DHS’s withholdings of the Challenged Documents pursuant to Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5), granted Defendants’ partial motion for summary judgment, and denied Plaintiffs’ motion for partial summary judgment;
WHEREAS, on August 8, 2018, the Court endorsed a Stipulation and Order of Partial Dismissal (Dkt. No. 71), which dismissed with prejudice any and all claims seeking the release of documents other than the Challenged Documents; any and all challenges to the adequacy of Defendants’ search for records responsive to the FOIA Requests; and any and all challenges to Defendants’ assertion of any exemption applied to documents other than the Challenged Documents;
WHEREAS, the parties agree that the only remaining issue in this matter concerns Plaintiffs’ claim of entitlement to attorney’s fees and litigation costs reasonably incurred in this case pursuant to 5 U.S.C. § 552(a)(4)(E); and
WHEREAS, the parties wish to resolve Plaintiffs’ claim for attorney’s fees and litigation costs consensually without further litigation;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows:
1. Pursuant to 5 U.S.C. § 552(a)(4)(E), as soon as reasonably practicable after the Court has endorsed and docketed this Stipulation and Order, FBI shall pay to Plaintiffs the sum of $12,527.11, FEMA shall pay to Plaintiffs the sum of $1,742.81, CISA shall pay to Plaintiffs
2

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the sum of $11,655.40, and I&A shall pay to Plaintiffs the sum of $11,655.40 (collectively, the “Settlement Amounts”), which sums Plaintiffs agree to accept as full payment of any costs and/or fees they have incurred in or in connection with this matter.
2. Effective upon payment of the Settlement Amounts set forth in Paragraph 1, Plaintiffs release the United States, its agencies, departments, officers, employees, servants, and agents, including Defendants, from any claims for attorney’s fees, costs, and expenses of any kind, and however denominated, relating to services performed in connection with this matter.
3. Nothing in this Stipulation and Order shall constitute an admission by the United States or its agencies, including Defendants, that Plaintiffs “substantially prevailed” in this case under 5 U.S.C. § 552(a)(4)(E).
4. The parties understand and agree that this Stipulation and Order contains the entire agreement between them. No statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect.
5. This action is hereby dismissed with prejudice, provided that the Court shall retain jurisdiction over any issues that may arise relating to this Stipulation and Order.
6. This stipulation may be executed in counterparts. Facsimile or PDF signatures shall have the same force and effect as original signatures.
3

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 </s> U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:16−cv−08215−WHP

CLOSED,ECF

Color of Change et al v. Department of Homeland Security et al Assigned to: Judge William H. Pauley, III Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/20/2016 Date Terminated: 03/14/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: Federal Question

Color of Change

represented by Avidan Yehuda Cover Milton Kramer Law Clinic Case Western Law School 11075 East Blvd. Cleveland, OH 44106 216−368−7662 Fax: 216−368−5137 Email: avidan.cover@case.edu ATTORNEY TO BE NOTICED

Ghita Schwarz Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212−614−6445 Fax: 212−614−6422 Email: gschwarz@ccrjustice.org ATTORNEY TO BE NOTICED

Stephanie Llanes Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (770)−329−1391 Email: smartinllanes@gmail.com ATTORNEY TO BE NOTICED

Omar Ahmed Farah Clifford Chance US, LLP (NYC) 31 West 52nd Street New York, NY 10019 (212) 878 3383 Fax: (212) 878 8375 Email: ofarah@ccrjustice.org ATTORNEY TO BE NOTICED

Plaintiff Center for Constitutional Rights

represented by Avidan Yehuda Cover (See above for address) ATTORNEY TO BE NOTICED

Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED

Stephanie Llanes (See above for address) ATTORNEY TO BE NOTICED

Omar Ahmed Farah

(See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Homeland Security
Defendant Federal Bureau of Investigation

represented by Tomoko Onozawa U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2721 Fax: (212) 637− 2686 Email: tomoko.onozawa@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Ann Jude United States Attorney's Office SDNY 86 Chambers St., 3rd Floor New York, NY 10007 (212)−637−2663 Fax: (212)−637−2686 Email: jennifer.jude@usdoj.gov ATTORNEY TO BE NOTICED
represented by Tomoko Onozawa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Ann Jude (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/20/2016
10/20/2016 10/20/2016
10/21/2016
10/21/2016 10/21/2016

# Docket Text
1 COMPLAINT against Department of Homeland Security, Federal Bureau of Investigation. (Filing Fee $ 400.00, Receipt Number 0208−12896998)Document filed by Color of Change, Center for Constitutional Rights. (Attachments: # 1 Exhibit Exhibits A−I)(Farah, Omar) (Entered: 10/20/2016)
2 CIVIL COVER SHEET filed. (Farah, Omar) (Entered: 10/20/2016)
3 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Department of Homeland Security and Federal Bureau of Investigation, re: 1 Complaint,. Document filed by Center for Constitutional Rights, Color of Change. (Farah, Omar) Modified on 10/21/2016 (pc). (Entered: 10/20/2016)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge William H. Pauley, III. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pc) (Entered: 10/21/2016)
Magistrate Judge Sarah Netburn is so designated. (pc) (Entered: 10/21/2016)
Case Designated ECF. (pc) (Entered: 10/21/2016)

10/21/2016
10/21/2016
10/21/2016 10/21/2016 10/24/2016 10/24/2016 10/24/2016 11/04/2016 11/22/2016 11/30/2016 12/02/2016
12/02/2016 12/05/2016

***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Omar Ahmed Farah. The party information for the following party/parties has been modified: Department of Homeland Security. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error. (pc) (Entered: 10/21/2016)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE−FILE Document No. 3 Request for Issuance of Summons,. The filing is deficient for the following reason(s): Party name listed on the docket entry for the summons must exactly match what is listed on the complaint caption title. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (pc) (Entered: 10/21/2016)
4 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Homeland Security and Federal Bureau of Investigation, re: 1 Complaint,. Document filed by Center for Constitutional Rights, Color of Change. (Farah, Omar) (Entered: 10/21/2016)
5 NOTICE OF APPEARANCE by Ghita Schwarz on behalf of Center for Constitutional Rights, Color of Change. (Schwarz, Ghita) (Entered: 10/21/2016)
6 NOTICE OF APPEARANCE by Avidan Yehuda Cover on behalf of Center for Constitutional Rights, Color of Change. (Cover, Avidan) (Entered: 10/24/2016)
7 ELECTRONIC SUMMONS ISSUED as to Federal Bureau of Investigation, United States Department of Homeland Security. (rch) (Entered: 10/24/2016)
8 ORDER FOR INITIAL PRETRIAL CONFERENCE: Initial Conference set for 1/20/2017 at 03:30 PM in Courtroom 20B, 500 Pearl Street, New York, NY 10007 before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 10/24/2016) (tro) (Entered: 10/25/2016)
9 NOTICE of Submission of Law Student Intern Appearance forms. Document filed by Center for Constitutional Rights, Color of Change. (Attachments: # 1 Exhibit Galen Baynes Law Student Intern Appearance Form, # 2 Exhibit Katelyn Pierce Law Student Intern Appearance Form, # 3 Exhibit Southern District of New York Plan for Student Practice in Civil Actions)(Cover, Avidan) (Entered: 11/04/2016)
10 LETTER MOTION for Conference on FBI's Motion to Dismiss and Requesting an Extension of DHS's Deadline to Respond to the Complaint addressed to Judge William H. Pauley, III from Jennifer Jude dated 11/22/16. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Jude, Jennifer) (Entered: 11/22/2016)
11 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION for Conference in Opposition to FBIs Motion to Dismiss addressed to Judge William H. Pauley, III from Omar Farah dated November 30, 2016. Document filed by Center for Constitutional Rights, Color of Change.(Farah, Omar) Modified on 12/22/2016 (db). (Entered: 11/30/2016)
12 ORDER granting 10 Letter Motion for Conference on FBI's Motion to Dismiss and Requesting an Extension of DHS's Deadline to Respond to the Complaint. Application approved. Defendants' time to respond to the complaint is extended to December 27, 2016. The parties shall address the FBI's proposed motion at the initial pre−trial conference on January 20, 2017. (Signed by Judge William H. Pauley, III on 12/2/2016) (cla) (Entered: 12/05/2016)
Set/Reset Deadlines: Federal Bureau of Investigation answer due 12/27/2016; United States Department of Homeland Security answer due 12/27/2016. (cla) (Entered: 12/05/2016)
13 LETTER MOTION for Extension of Time to File Answer re: 12 Order on Motion for Conference, addressed to Judge William H. Pauley, III from AUSA Tomoko Onozawa dated 12/5/2016. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Onozawa, Tomoko) (Entered: 12/05/2016)

12/05/2016 12/23/2016 01/11/2017 01/13/2017 01/18/2017
01/27/2017 02/17/2017 02/17/2017 02/24/2017 03/23/2017
03/23/2017
04/19/2017 04/20/2017

14 ORDER granting 13 Letter Motion for Extension of Time to Answer. Application approved. The FBI's deadline to file an answer is extended until after the Court has ruled on the FBI's proposed motion to dismiss. (Signed by Judge William H. Pauley, III on 12/5/2016) (mro) (Entered: 12/06/2016)
15 ANSWER to 1 Complaint,. Document filed by United States Department of Homeland Security.(Onozawa, Tomoko) (Entered: 12/23/2016)
16 AFFIDAVIT OF SERVICE of Summons and Complaint,. Federal Bureau of Investigation served on 10/26/2016, answer due 11/16/2016; United States Department of Homeland Security served on 10/26/2016, answer due 11/16/2016. Service was accepted by Lisa Ahearn, Civil Clerk. Document filed by Color of Change; Center for Constitutional Rights. (Farah, Omar) (Entered: 01/11/2017)
17 JOINT LETTER addressed to Judge William H. Pauley, III from Tomoko Onozawa dated 1/13/17 re: Initial Pretrial Conference. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Jude, Jennifer) (Entered: 01/13/2017)
18 MEMO ENDORSEMENT on re: 17 Letter re: Initial Pretrial Conference, filed by United States Department of Homeland Security, Federal Bureau of Investigation. ENDORSEMENT: Application granted in part. Defendant FBI's time to file an answer is extended to January 27, 2017. The initial pre−trial conference scheduled for January 20, 2017 is adjourned to February 24, 2017 at 3:00 p.m. (Federal Bureau of Investigation answer due 1/27/2017. Initial Conference set for 2/24/2017 at 03:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 1/18/2017) (cla) (Entered: 01/18/2017)
19 ANSWER to 1 Complaint,. Document filed by Federal Bureau of Investigation.(Onozawa, Tomoko) (Entered: 01/27/2017)
20 FIRST LETTER MOTION for Conference Pretrial on February 24, 2017 addressed to Judge William H. Pauley, III from Avidan Y. Cover dated February 17, 2017. Document filed by Center for Constitutional Rights, Color of Change.(Cover, Avidan) (Entered: 02/17/2017)
21 ORDER granting 20 Letter Motion for Conference. Application granted. (Signed by Judge William H. Pauley, III on 2/17/2017) (cla) (Entered: 02/17/2017)
Minute Entry for proceedings held before Judge William H. Pauley, III: Initial Pretrial Conference held on 2/24/2017. (Entered: 03/03/2017)
22 TRANSCRIPT of Proceedings re: CONFERENCE held on 2/24/2017 before Judge William H. Pauley, III. Court Reporter/Transcriber: Carol Ganley, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/13/2017. Redacted Transcript Deadline set for 4/24/2017. Release of Transcript Restriction set for 6/21/2017.(McGuirk, Kelly) (Entered: 03/23/2017)
23 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNECE proceeding held on 2/24/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/23/2017)
24 LETTER addressed to Judge William H. Pauley, III from AUSA Tomoko Onozawa dated 4/19/2017 re: Joint Status Letter. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Onozawa, Tomoko) (Entered: 04/19/2017)
25 SCHEDULING ORDER: Status Conference set for 4/21/2017 at 01:30 PM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 4/20/2017) (cla) (Entered: 04/20/2017)

04/21/2017 04/21/2017 04/28/2017 04/28/2017
05/05/2017 05/05/2017 05/12/2017 05/12/2017

26 SCHEDULING ORDER: The Office of Intelligence and Analysis shall produce its responsive documents at a rate of five hundred pages per month starting on May 22, 2017. The Federal Bureau of Investigation shall produce its responsive documents at a rate of 500 pages per month starting on May 31, 2017. The parties shall submit a joint status report by June 20, 2017. Status Conference set for 6/23/2017 at 10:30 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 4/21/2017) (cla) (Entered: 04/21/2017)
Minute Entry for proceedings held before Judge William H. Pauley, III: Status Conference held on 4/21/2017. (Entered: 05/08/2017)
27 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION for Leave to File Proposed Amended Order addressed to Judge William H. Pauley, III from AUSA Tomoko Onozawa dated 4/28/2017. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Onozawa, Tomoko) Modified on 6/6/2017 (ldi). (Entered: 04/28/2017)
28 AMENDED SCHEDULING ORDER. The Court adopts the following schedule on consent: 1. The Office of intelligence and Analysis ("I&A") shall process 500 pages of responsive documents on or before May 22, 2017. I&A shall either process or produce (with the term and definition of processing or producing to be determined by consent of the parties or, if necessary, by further Order of this Court) all outstanding responsive documents at a rate of 500 pages per month thereafter. 2. The Federal Bureau of Investigation ("FBI") shall process 500 pages of responsive documents on or before May 31, 2017. FBI shall either process or produce (with the term and definition of processing or producing to be determined by consent of the parties or, if necessary, by further Order of this Court) all outstanding responsive documents at a rate of 500 pages per month thereafter. 3. The parties shall submit a joint status report by June 20, 2017. 4. The parties shall appear for a status conference on June 23, 2017 at 10:30 a.m. Granting 27 LETTER MOTION for Leave to File Proposed Amended Order addressed to Judge William H. Pauley, III from AUSA Tomoko Onozawa dated 4/28/2017. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security. (Signed by Judge William H. Pauley, III on 4/28/2017) (rjm) (Entered: 04/28/2017)
29 TRANSCRIPT of Proceedings re: conference held on 4/21/2017 before Judge William H. Pauley, III. Court Reporter/Transcriber: Rose Prater, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/26/2017. Redacted Transcript Deadline set for 6/5/2017. Release of Transcript Restriction set for 8/3/2017.(McGuirk, Kelly) (Entered: 05/05/2017)
30 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/21/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/05/2017)
31 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/21/2017 before Judge William H. Pauley, III. Court Reporter/Transcriber: Rose Prater, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/2/2017. Redacted Transcript Deadline set for 6/12/2017. Release of Transcript Restriction set for 8/10/2017.(McGuirk, Kelly) (Entered: 05/12/2017)
32 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/21/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/12/2017)

06/20/2017 06/22/2017 06/22/2017 08/08/2017 08/09/2017 08/09/2017 09/13/2017 09/14/2017 10/11/2017 10/12/2017 11/17/2017 12/05/2017 12/06/2017
01/25/2018

33 JOINT LETTER addressed to Judge William H. Pauley, III from Tomoko Onozawa dated 6/20/17 re: Status Update. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Jude, Jennifer) (Entered: 06/20/2017)
34 LETTER MOTION to Adjourn Conference scheduled for June 23 2017 at 10:30 a.m., addressed to Judge William H. Pauley, III from AUSA Tomoko Onozawa dated 6/22/2017. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Onozawa, Tomoko) (Entered: 06/22/2017)
35 ORDER: granting 34 Letter Motion to Adjourn Conference. Application granted. The status conference is adjourned to August 11, 2017 at 2:30 pm. Status Conference set for 8/11/2017 at 02:30 PM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 6/22/2017) (ap) (Entered: 06/22/2017)
***DELETED DOCUMENT. Deleted document number 38 AO 121 FORM COPYRIGHT − CASE TERMINATED− SUBMITTED. The document was incorrectly filed in this case. (jwh) (Entered: 08/09/2017)
36 SECOND LETTER MOTION to Adjourn Conference addressed to Judge William H. Pauley, III from Avidan Y. Cover dated August 9, 2017. Document filed by Color of Change.(Cover, Avidan) (Entered: 08/09/2017)
37 ORDER granting 36 Letter Motion to Adjourn Conference: Application granted. The status conference scheduled for August 11, 2017 is adjourned to September 15, 2017 at 3:00 p.m. (Status Conference set for 9/15/2017 at 03:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 8/9/2017) (jwh) (Entered: 08/09/2017)
38 THIRD LETTER MOTION to Adjourn Conference addressed to Judge William H. Pauley, III from OMAR FARAH dated 9/13/2017. Document filed by Center for Constitutional Rights, Color of Change.(Farah, Omar) (Entered: 09/13/2017)
39 ORDER granting 38 Letter Motion to Adjourn Conference. Application granted. The status conference scheduled for September 15, 2017 is adjourned October 13, 2017 at 10:00 a.m. SO ORDERED. (Status Conference set for 10/13/2017 at 10:00 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 9/14/2017) (anc) (Entered: 09/14/2017)
40 FOURTH LETTER MOTION to Adjourn Conference Status addressed to Judge William H. Pauley, III from Avidan Y. Cover dated 10.11.2017. Document filed by Center for Constitutional Rights.(Cover, Avidan) (Entered: 10/11/2017)
41 ORDER granting 40 Letter Motion to Adjourn Conference: Application granted. The status conference scheduled for October 13, 2017 is adjourned to November 21, 2017 at 10:30 a.m. (Status Conference set for 11/21/2017 at 10:30 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 10/12/2017) (jwh) (Entered: 10/12/2017)
42 SCHEDULING ORDER: The status conference scheduled for November 21, 2017 is adjourned to December 7, 2017 at 11:30 a.m. SO ORDERED. (Status Conference set for 12/7/2017 at 11:30 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 11/17/2017) (anc) (Entered: 11/20/2017)
43 FIFTH LETTER MOTION to Adjourn Conference addressed to Judge William H. Pauley, III from OMAR FARAH dated 12/5/2017. Document filed by Center for Constitutional Rights, Color of Change.(Farah, Omar) (Entered: 12/05/2017)
44 ORDER granting 43 FIFTH LETTER MOTION to Adjourn Conference addressed to Judge William H. Pauley, III from OMAR FARAH dated 12/5/2017. Document filed by Center for Constitutional Rights, Color of Change. Application granted. The status conference scheduled for December 7, 2017 is adjourned to January 25, 2018 at 12:00 p.m.So ordered. (Status Conference set for 1/25/2018 at 12:00 PM before Judge William H. Pauley III). (Signed by Judge William H. Pauley, III on 12/6/2017) (rjm) (Entered: 12/06/2017)
45 SCHEDULING ORDER: The parties having appeared for a status conference on January 25, 2018, this Court adopts the following schedule on consent: 1. Plaintiffs

01/25/2018 02/09/2018 02/09/2018 02/09/2018 03/08/2018
03/08/2018
03/15/2018 03/15/2018 03/15/2018 03/19/2018 03/19/2018 03/19/2018

shall file their proposed motion by March 2, 2018. 2. Defendants shall file any opposition papers by April 4, 2018. 3. Plaintiffs shall file any reply by April 18, 2018. 4. The parties shall appear for oral argument on May 4, 2018 at 11:00 a.m. (Motions due by 3/2/2018. Responses due by 4/4/2018 Replies due by 4/18/2018. Oral Argument set for 5/4/2018 at 11:00 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 1/25/2018) (jwh) (Entered: 01/25/2018)
Minute Entry for proceedings held before Judge William H. Pauley, III: Status Conference held on 1/25/2018. (Entered: 02/02/2018)
46 LETTER MOTION for Extension of Time for Briefing Schedule addressed to Judge William H. Pauley, III from Avidan Y. Cover dated February 9, 2018. Document filed by Center for Constitutional Rights, Color of Change.(Cover, Avidan) (Entered: 02/09/2018)
47 ORDER: granting 46 Letter Motion for Extension of Time. Application granted. This Court adopts Plaintiffs' proposed briefing schedule. Oral argument is adjourned from May 4, 2018 to May 18, 2018 at 11:00 a.m. Motions due by 3/16/2018. Response due by 4/18/2018 Reply due by 5/2/2018. Oral argument set for 5/18/2018, at 11:00 A.M. (Signed by Judge William H. Pauley, III on 2/9/2018) (ap) (Entered: 02/09/2018)
Set/Reset Deadlines: (Responses due by 4/18/2018. Replies due by 5/2/2018., Set/Reset Hearings: (Oral Argument set for 5/18/2018 at 11:00 AM before Judge William H. Pauley III.) (ap) (Entered: 02/09/2018)
48 TRANSCRIPT of Proceedings re: CONFERNECE held on 1/25/2018 before Judge Robert P. Patterson. Court Reporter/Transcriber: Carol Ganley, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/29/2018. Redacted Transcript Deadline set for 4/9/2018. Release of Transcript Restriction set for 6/6/2018.(McGuirk, Kelly) (Entered: 03/08/2018)
49 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNECE proceeding held on 1/25/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/08/2018)
50 NOTICE OF APPEARANCE by Stephanie Llanes on behalf of Center for Constitutional Rights, Color of Change. (Llanes, Stephanie) (Entered: 03/15/2018)
51 MEMO ENDORSEMENT on LAW STUDENT INTERN APPEARANCE FORM FOR ANTHONY CIRRANELLO, JR. ENDORSEMENT: I authorize this student: (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge William H. Pauley, III on 3/15/2018) (jwh) (Entered: 03/16/2018)
52 MEMO ENDORSEMENT on LAW STUDENT INTERN APPEARANCE FORM FOR KRITHIKA RAJKUMAR. ENDORSEMENT: I authorize this student: (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge William H. Pauley, III on 3/15/2018) (jwh) (Entered: 03/16/2018)
53 LETTER addressed to Judge William H. Pauley, III from OMAR FARAH dated MARCH 19, 2018 re: Confirming March 19, 2018 filing of Summary Judgment Motion. Document filed by Center for Constitutional Rights, Color of Change.(Farah, Omar) (Entered: 03/19/2018)
54 MOTION for Summary Judgment . Document filed by Center for Constitutional Rights, Color of Change.(Farah, Omar) (Entered: 03/19/2018)
55 MEMORANDUM OF LAW in Support re: 54 MOTION for Summary Judgment . . Document filed by Center for Constitutional Rights, Color of Change. (Farah, Omar) (Entered: 03/19/2018)

03/19/2018
03/19/2018 04/18/2018 04/18/2018 04/18/2018 04/19/2018 04/19/2018 05/02/2018 05/18/2018 05/23/2018
06/11/2018
06/11/2018

56 DECLARATION of OMAR FARAH in Support re: 54 MOTION for Summary Judgment .. Document filed by Center for Constitutional Rights, Color of Change. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1 Document A, # 3 Exhibit 1 Document B, # 4 Exhibit 1 Document C, # 5 Exhibit 1 Document D, # 6 Exhibit 1 Document E, # 7 Exhibit 1 Document F, # 8 Exhibit 1 Document G, # 9 Exhibit 1 Document H, # 10 Exhibit 2, # 11 Exhibit 3, # 12 Exhibit 4, # 13 Exhibit 5, # 14 Exhibit 6, # 15 Exhibit 7, # 16 Exhibit 7 Document A, # 17 Exhibit 7 Document B, # 18 Exhibit 7 Document C, # 19 Exhibit 7 Document D, # 20 Exhibit 7 Document E, # 21 Exhibit 7 Document F, # 22 Exhibit 7 Document G, # 23 Exhibit 8)(Farah, Omar) (Entered: 03/19/2018)
57 MEMO ENDORSEMENT on re: 53 Letter filed by Color of Change, Center for Constitutional Rights. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 3/19/2018) (jwh) (Entered: 03/19/2018)
58 CROSS MOTION for Partial Summary Judgment . Document filed by United States Department of Homeland Security. Return Date set for 5/18/2018 at 11:00 AM.(Onozawa, Tomoko) (Entered: 04/18/2018)
59 MEMORANDUM OF LAW in Support re: 58 CROSS MOTION for Partial Summary Judgment . and in Opposition to Plaintiffs' Motion for Partial Summary Judgment. Document filed by United States Department of Homeland Security. (Onozawa, Tomoko) (Entered: 04/18/2018)
60 DECLARATION of Arthur R. Sepeta in Support re: 58 CROSS MOTION for Partial Summary Judgment .. Document filed by United States Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Onozawa, Tomoko) (Entered: 04/18/2018)
61 AMENDED MEMORANDUM OF LAW in Support re: 58 CROSS MOTION for Partial Summary Judgment . . Document filed by United States Department of Homeland Security. (Jude, Jennifer) (Entered: 04/19/2018)
62 LETTER addressed to Judge William H. Pauley, III from Jennifer Jude dated 4/19/18 re: Corrected Memorandum of Law. Document filed by United States Department of Homeland Security. (Attachments: # 1 Exhibit A −− Redline of Memorandum)(Jude, Jennifer) (Entered: 04/19/2018)
63 REPLY MEMORANDUM OF LAW in Support re: 54 MOTION for Summary Judgment . . Document filed by Center for Constitutional Rights, Color of Change. (Farah, Omar) (Entered: 05/02/2018)
Minute Entry for proceedings held before Judge William H. Pauley, III: Oral Argument held on 5/18/2018 re: 54 MOTION for Summary Judgment . filed by Color of Change, Center for Constitutional Rights, 58 CROSS MOTION for Partial Summary Judgment . filed by United States Department of Homeland Security. (Entered: 05/30/2018)
64 MEMORANDUM & ORDER: At this time, this Court makes no judgment as to the adequacy of the Sepeta Declaration, and is mindful that its "inspection prerogative is not a substitute for the government's burden of proof." Halpern v. FBI, 181 F.3d 279, 295 (2d Cir. 1999). Accordingly, DHS shall provide this Court with the documents underlying the parties' cross motions for summary judgment for in camera review by June 6, 2018. SO ORDERED. (Signed by Judge William H. Pauley, III on 5/23/2018) (ama) (Entered: 05/23/2018)
65 TRANSCRIPT of Proceedings re: ARRAINGMENT held on 5/18/2018 before Judge William H. Pauley, III. Court Reporter/Transcriber: Karen Gorlaski, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/2/2018. Redacted Transcript Deadline set for 7/12/2018. Release of Transcript Restriction set for 9/10/2018.(McGuirk, Kelly) (Entered: 06/11/2018)
66 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 5/18/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely

07/09/2018
08/07/2018 08/07/2018 08/08/2018 08/08/2018
09/27/2018 09/28/2018 10/29/2018 10/30/2018 11/26/2018 11/28/2018 12/27/2018 12/27/2018 12/27/2018

electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/11/2018)
67 OPINION & ORDER re: 54 MOTION for Summary Judgment; 58 CROSS MOTION for Partial Summary Judgment: For the foregoing reasons, DHS's motion for partial summary judgment is granted and Plaintiffs' motion for partial summary judgment is denied. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 54 and 58. The parties are directed to submit a joint status report by August 8, 2018. (Signed by Judge William H. Pauley, III on 7/9/2018) (jwh) (Entered: 07/09/2018)
68 PROPOSED STIPULATION AND ORDER. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security. (Onozawa, Tomoko) (Entered: 08/07/2018)
69 STATUS REPORT. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Onozawa, Tomoko) (Entered: 08/07/2018)
70 MEMO ENDORSEMENT on re: 69 Status Report filed by United States Department of Homeland Security, Federal Bureau of Investigation. ENDORSEMENT: Application granted. This Court adopts the parties' proposed deadlines. (Signed by Judge William H. Pauley, III on 8/8/2018) (jwh) (Entered: 08/09/2018)
71 STIPULATION AND ORDER OF PARTIAL DISMISSAL: IT IS HEREBY STIPULATED AND AGREED, by and between the parties as follows: 1. In addition to any and all claims relating to the Challenged Documents, which were addressed by the July 9th Order, the following claims in this action are dismissed with prejudice: any and all claims seeking the release of documents other than the Challenged Documents; any and all challenges to the adequacy of Defendants' search for records responsive to the FOIA Requests; and any and all challenges to Defendants' assertion of any exemption applied to documents other than the Challenged Documents. 2. The sole remaining unresolved claim in this action is Plaintiffs' demand or potential demand for an award of attorneys' fees, as to which all parties reserve all rights and defenses. Nothing in this Stipulation modifies the substantive legal standard otherwise applicable under law governing Plaintiffs' potential claim for attorneys' fees. (Signed by Judge William H. Pauley, III on 8/8/2018) (jwh) (Entered: 08/09/2018)
72 JOINT LETTER MOTION for Extension of Time to File Status Report addressed to Judge William H. Pauley, III from Jennifer Jude dated 9/27/18. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Jude, Jennifer) (Entered: 09/27/2018)
73 ORDER granting 72 Letter Motion for Extension of Time: Application granted. (Signed by Judge William H. Pauley, III on 9/28/2018) (jwh) (Entered: 09/28/2018)
74 SECOND LETTER MOTION for Extension of Time to file Status Report addressed to Judge William H. Pauley, III from Omar Farah dated October 29, 2018. Document filed by Center for Constitutional Rights.(Farah, Omar) (Entered: 10/29/2018)
75 ORDER granting 74 Motion for Extension of Time: SO ORDERED. (Signed by Judge William H. Pauley, III on 10/30/2018) (jwh) (Entered: 10/30/2018)
76 THIRD LETTER MOTION for Extension of Time to File Status Report addressed to Judge William H. Pauley, III from Jennifer Jude dated 11/26/18. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Jude, Jennifer) (Entered: 11/26/2018)
77 ORDER granting 76 Letter Motion for Extension of Time: Application granted. (Signed by Judge William H. Pauley, III on 11/28/2018) (jwh) (Entered: 11/29/2018)
78 STANDING ORDER M10−468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (mro) (Entered: 01/02/2019)
Case Stayed (mro) (Entered: 01/14/2019)
Terminate Transcript Deadlines (mro) (Entered: 01/14/2019)

01/29/2019 02/12/2019 02/14/2019 03/12/2019 03/14/2019
04/04/2019 04/11/2019

79 ORDER: In view of the conclusion of the government shutdown, the stay on this action is lifted. The parties are directed to file a joint status report by February 12, 2019. (Pretrial Order due by 2/12/2019.) (Signed by Judge William H. Pauley, III on 1/29/2019) (jwh) (Entered: 01/29/2019)
80 STATUS REPORT. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security.(Onozawa, Tomoko) (Entered: 02/12/2019)
81 MEMO ENDORSEMENT on re: 80 Status Report filed by United States Department of Homeland Security, Federal Bureau of Investigation. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 2/14/2019) (jwh) (Entered: 02/14/2019)
82 STATUS REPORT. Document filed by Center for Constitutional Rights.(Farah, Omar) (Entered: 03/12/2019)
83 ORDER: It having been reported to this Court that this action has been or will be settled, this action is discontinued without costs to any party, and without prejudice to reopening this action if such an application is made within thirty (30) days of this Order. The Clerk of Court is directed to terminate all pending motions and mark this case as closed. (Signed by Judge William H. Pauley, III on 3/14/2019) (jwh) (Entered: 03/14/2019)
84 PROPOSED STIPULATION AND ORDER. Document filed by Federal Bureau of Investigation, United States Department of Homeland Security. (Onozawa, Tomoko) (Entered: 04/04/2019)
85 STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows: Pursuant to 5 U.S.C. § 552(a)(4)(E), as soon as reasonably practicable after the Court has endorsed and docketed this Stipulation and Order, FBI shall pay to Plaintiffs the sum of $12,527.11, FEMA shall pay to Plaintiffs the sum of $1,742.81, CISA shall pay to Plaintiffs the sum of $11,655.40, and I&A shall pay to Plaintiffs the sum of $11,655.40 (collectively, the "Settlement Amounts"), which sums Plaintiffs agree to accept as full payment of any costs and/or fees they have incurred in or in connection with this matter, and as further set forth in this stipulation. This action is hereby dismissed with prejudice, provided that the Court shall retain jurisdiction over any issues that may arise relating to this Stipulation and Order. (Signed by Judge William H. Pauley, III on 4/11/2019) (jwh) (Entered: 04/11/2019)


[CONTENT] October 20, 2016 | Color of Change and Center for Constitutional Rights | the Freedom of Information Act | FOIA | the Southern District | New York ||| the Milton Kramer Law Clinic at Case Western | the Center for Constitutional Rights | Clifford Chance | the U.S. Department of Homeland security | the Federal Bureau of Investigation | FBI | the Movement for Black Lives | MBL ||| 18-year-old | Michael Brown | Ferguson | Missouri | MBL ||| first | MBL ||| the First Amendment's ||| July 5 2016 | FOIA | DHS | FBI | July 18, 2016 | DHS |||  ||| August 29, 2016 | DHS ||| September 27, 2016 | the Office of Intelligence & Analysis | DHS ||| the Office of Intelligence and Analysis' | FOIA ||| October 20 | DHS |||  ||| July 28, 2016 | FBI ||| FBI ||| September 20, 2016 | FBI | FBI | FBI ||| January 20, 2017 | U.S. | District Court | William H. Pauley III ||| February 24, 2017 ||| April 21, 2017 ||| 500 |||  ||| February 9, 2018 | Growing Frequency ||| July 9, 2018 | William Pauley | FOIA | 5 ||| DHS ||| DHS ||| August 7, 2018 | Pauley ||| late 2018 | early 2019 | U.S. ||| March 12, 2019 | Pauley ||| April 11 | FBI | 12,527.11 | the Federal Emergency Management Administration | FEMA | 1,742.81 | the Cybersecurity Infrastructure Security Agency | 11,655.40 | DHS Intelligence and Analysis | 11,655.40 |||  [SUMMARY] On October 20, 2016, Color of Change and Center for Constitutional Rights, nonprofit civil rights advocacy and communications organizations, brought this action under the Freedom of Information Act ("FOIA") in the Southern District of New York. The plaintiffs, represented by an attorney from the Milton Kramer Law Clinic at Case Western, an attorney from the Center for Constitutional Rights, and an attorney for Clifford Chance, sued the U.S. Department of Homeland security ("DHS") and the Federal Bureau of Investigation ("FBI"), seeking declaratory, injunctive, and other appropriate relief to compel the defendants to produce records related to federal government surveillance and monitoring of protest activities related to the Movement for Black Lives ("MBL"). 

Following the shooting of 18-year-old Michael Brown by a police officer in Ferguson, Missouri, MBL gained national scope and influence, drawing public attention to police violence and advocating for police reform and racial justice. The plaintiffs alleged in their complaint that government documents, news reports, and first-hand accounts demonstrated that the defendants, and state and local law enforcement agencies, had engaged in surveillance and monitoring of MBL demonstrations and individual activists aligned with the movement, using tactics and measures commonly reserved for counterterrorism and national security related purposes. They further alleged that this monitoring of legitimate protest activities undermined the First Amendment's protection of political speech, and would chill valuable public debate about police violence, including use of deadly force, criminal justice, and racial inequities. 

On July 5 2016, the plaintiffs submitted their FOIA request to DHS and the FBI: 

<b>DHS</b>
On July 18, 2016, DHS's privacy office sent a letter to the plaintiffs acknowledging receipt of the request. DHS denied the plaintiffs' request for expedited processing and a fee waiver, which the plaintiffs appealed. On August 29, 2016, DHS acknowledged that it had received the appeal, but never responded to it. 

On September 27, 2016, the plaintiffs received a response from the Office of Intelligence & Analysis, a component of DHS, claiming that a search of its files revealed no records responsive to the plaintiffs' request. The plaintiffs appealed that decision based on the Office of Intelligence and Analysis' failure to perform an adequate search for records and its improper reliance on FOIA exemptions to avoid searching for, or producing, responsive records. On October 20, the plaintiffs received an acknowledgment from DHS regarding the appeal, but did not receive any other response or correspondence. 

<b>FBI</b>
On July 28, 2016, the FBI sent a letter acknowledging receipt of the plaintiffs' request. Unlike DHS, the FBI granted the plaintiffs' request for expedited processing, however, it did not indicate whether processing had begun or when it would be complete. On September 20, 2016, the plaintiffs sent the FBI a letter requesting that the FBI notify them of when to expect to receive documents responsive to their request, but the FBI never responded.

An initial pretrial conference was originally set for January 20, 2017, before U.S. District Court Judge William H. Pauley III. After several motions to push back the date of the initial pretrial conference, the conference was held on February 24, 2017. Another status conference was held on April 21, 2017. During this conference, the parties agreed to the discovery schedule of 500 pages per month of responsive documents. 

During discovery, both parties narrowed the requested documents, and prepared to file motions to contest or uphold exemptions. In line with timelines set in a February 9, 2018 scheduling conference, both parties filed motions for partial summary judgment surrounding release of a non-finalized intelligence assessment titled "(U\\FOUO) Growing Frequency of Race-Related Domestic Terrorist Violence." On July 9, 2018, Judge William Pauley ruled in favor of the defendants, saying that this document falls under FOIA's exemption 5 for process-related documents. He wrote that, because this document was written by an analyst and an intern, it revealed the processes of how DHS assesses and analyzes intelligence.

With this motion for summary judgment decided and the cooperation of the parties outside of the contested DHS memo, all issues in the case were settled outside of the allocation of attorney fees. With this in mind, after an August 7, 2018 status report, Judge Pauley filed an order to partially dismiss the case, closing all claims outside of attorney fees.

The case was briefly stayed in late 2018 and early 2019 due to the U.S. federal government shutdown. On March 12, 2019, Judge Pauley received a status report indicating that the parties reached a settlement on attorney fees. He ordered dismissal on April 11 and published the terms of the agreement; the FBI would pay $12,527.11, the Federal Emergency Management Administration (FEMA) would pay $1,742.81, the Cybersecurity Infrastructure Security Agency (CISA) would pay $11,655.40, and DHS Intelligence and Analysis would pay $11,655.40 to the plaintiffs.

The case is closed.