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Expedited review provisions tested in e-mail surveillance controversy

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information         Aug 4, 2000    

Expedited review provisions tested in e-mail surveillance controversy

  • In the first judicial look at the Electronic Freedom of Information Act’s expedited review provisions, a federal District Court has ordered the FBI to tell the court and a requester when it expects to process an FOI request concerning its controversial e-mail surveillance system.

In the first judicial action on the “expedited review” provision of the Electronic Freedom of Information Act of 1996, a federal judge ruled August 2 that the FBI must report within 10 days when it can respond to an FOI Act request filed by the Electronic Privacy Information Center (EPIC) which included a request that the agency expedite processing of the request..

EPIC, a public interest group in Washington, D.C., which monitors federal government measures which it finds could intrude upon personal privacy, on July 12 filed an FOI request for all records regarding the FBI’s new controversial Carnivore e-mail surveillance system which allows the agency to intercept some e-mail of criminal suspects.

On July 18, EPIC filed a request for the agency to expedite processing in line with the requirements of EFOIA that an agency on request must expedite a response in certain circumstances. At the Department of Justice and FBI those circumstances, by rule, include matters of “widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.”

When the FBI and Department of Justice did not respond to its request for expedited review, EPIC filed a motion for a temporary restraining order and a preliminary injunction in the U.S. District Court in Washington, D.C.

At a hearing held on EPIC’s motion August 3, David Sobel, EPIC’s attorney, said he had received a fax from the FBI granting expedited review 90 minutes prior to the hearing. The granting of the expedited review, ruled federal District Court Judge James Robertson, made moot EPIC’s request for a temporary restraining order.

However, In ruling on the remaining question of what “expedited processing” is, Robertson said that the FBI must inform EPIC within 10 days when it would be able to process EPIC’s request. Robertson said that he did not believe FOIA requests meant getting the requested documents in “real time through litigation.” The language in FOIA, Robertson said, is that requests must be processed “as soon as practicable,” not immediately or as soon as possible. Robertson ruled that the FBI had 10 days to inform him what its interpretation of “as soon as practicable” means in the processing EPIC’s request.

Sobel had argued that the expedited review provision was intended to get information to the public quickly in certain circumstances. He argued that simply giving the request faster treatment than some other requests would not be sufficient.

The FBI has been notoriously slow in providing records and many responses are not processed for more than five years.

The Washington Post reported that Attorney General Janet Reno said she will accelerate the review of the FBI’s e-mail surveillance system and do everything she can to calm privacy advocates’ worries about it.

(Electronic Privacy Information Center v. Department of Justice; EPIC counsel: David Sobel, Washington, D.C.) JM


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