Case 1:12-cv-00667-CKK Document 23 Filed 08/29/13 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________________
)
ELECTRONIC PRIVACY
)
INFORMATION CENTER
)
)
Plaintiff,
)
)
v.
) Civil No. 1:12-cv-00667 (CKK)
)
FEDERAL BUREAU OF INVESTIGATION
)
)
Defendant.
)
________________________________________________ )
JOINT STATUS REPORT
Pursuant to the Court’s Order on May 31, 2013, Plaintiff Electronic Privacy Information
Center (“EPIC”) and Defendant Federal Bureau of Investigation (“FBI”) have conferred and hereby
submit the following joint status report:
1. Plaintiff filed this action on April 27, 2012, seeking injunctive and other appropriate relief
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, including the release of
agency records requested by EPIC on February 10, 2012 (“EPIC FOIA Request”).
2. The EPIC FOIA Request covered five categories of documents:
a. All documents concerning technical specifications of the StingRay device or other
cell-site simulator technologies; and
b. All documents concerning procedural requirements or guidelines for the use of
StingRay device or other cell-site simulator technologies (e.g. configuration, data
retention, data deletion); and
c. All contracts and statements of work that relate to StingRay device or other cell-site
simulator technologies; and
d. All memoranda regarding the legal basis for the use of StingRay device or other cell1

 Case 1:12-cv-00667-CKK Document 23 Filed 08/29/13 Page 2 of 5

site simulator technologies; and
e. All Privacy Impact Assessments or Reports concerning the use or capabilities of
StingRay device or other cell-site simulator technologies.
3. Pursuant to the Court’s Order on June 14, 2012, the parties submitted a Joint Proposed
Schedule on June 27, 2012, in which the Defendant agreed to review a minimum of 1,000
pages of responsive documents per month. However, the parties disagreed as to the
proposed deadline for final production and the proposed briefing schedule.
4. In response to the Joint Proposed Schedule, on July 1, 2012, the Court ordered that
Defendant file a motion for an Open America stay or the Court would adopt Plaintiff’s
proposed production schedule. Defendant subsequently filed a Motion for an Open America
Stay on July 30, 2012, and briefing was completed on August 30, 2012.
5. On October 3, 2012, the Defendant sent Plaintiff the first production of documents via
USPS. The Defendant has since produced documents on a rolling basis through July 30,
2013, at which point Defendant’s production was complete.
6. The Court denied Defendant’s Motion for an Open America Stay in a Memorandum
Opinion and Order on March 28, 2013. That order stated:
The FBI shall produce all responsive, non-exempt records not subject
to classification review to the Plaintiff on a rolling basis, but by no
later than August 1, 2013. By no later than May 31, 2013, the FBI
shall
identify
how
many
pages
are
subject
to
classification/declassification review and propose a deadline for
completing production of all responsive, non-exempt records after
classification/declassification review.
7. On May 30, 2013, the Defendant submitted the required Notice Regarding Number of
Classified Pages to the Court, representing that the classification review had been completed
and “all responsive, non-exempt records that had been subjected to classification review will
be processed and produced to Plaintiff on a rolling basis no later than August 1, 2013.”
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 Case 1:12-cv-00667-CKK Document 23 Filed 08/29/13 Page 3 of 5

Subsequently the Court ordered on May 31, 2013 that, in light of the Defendant’s Notice,
that “all responsive, non-exempt records” be produced “on a rolling basis by no later than
August 1, 2013.” The Court also ordered that “[o]n or before August 30, 2013, the parties
shall file a joint status report proposing a schedule for proceeding in this matter.”
8.

Between October 3, 2012 and July 30, 2013, the Defendant sent 13 separate sets of
documents to the Plaintiff, and produced a total of 4,377 pages in whole or in part. The
Defendant reviewed a total of 22,982 pages and withheld in full 18,605 pages.

9. The Plaintiff acknowledges that the Defendant has produced some responsive records, but
does not have sufficient information to determine whether Defendant has produced all nonexempt records. Specifically, the Plaintiff does not have sufficient information to evaluate
the Defendant’s withholdings under Exemption 3 and Exemption 7(E). The Plaintiff notes
that the Defendant has asserted (b)(3) and (b)(7)(E) Exemptions as to the majority of pages
withheld in whole or in part. The Defendant has not identified a specific statutory section or
otherwise connected the withheld records to its asserted (b)(3) Exemption, but rather the
Defendant refers generally to “The National Security Act of 1947.” Plaintiff does not
question the Defendant’s asserted (b)(1), (b)(4), (b)(5), or (b)(7)(C) Exemptions as to pages
withheld in whole or in part.
10. The Defendant is required to submit a Vaughn Index pursuant to summary judgment
proceedings in this matter. However, the parties are willing to try to resolve this matter prior
to summary judgment to avoid using judicial resources. Defendant has agreed to provide
Plaintiff with a draft Vaughn Index for a sample of up to 500 pages of responsive documents
within thirty (30) days of receiving the sample selection. Defendant’s Vaughn Index need
not address its withholdings under (b)(1), (b)(4), (b)(5), or (b)(7)(C), but it will include a

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 Case 1:12-cv-00667-CKK Document 23 Filed 08/29/13 Page 4 of 5

specific statutory provision for withholdings claimed solely under (b)(3). Plaintiff may
choose the up to 500 pages that will comprise the sample. Plaintiff will then review the
draft Vaughn Index and make a determination regarding how to proceed in this matter
within 14 days of receipt. If the Plaintiff is satisfied that the Vaughn Index sufficiently
supports the claimed (b)(3) and (b)(7)(E) exemptions, then the Plaintiff will consider a
proposed settlement; if not, then the parties will confer regarding a proposed briefing
schedule for dispositive motions. In light of the above, the parties propose that the Court set
the following deadlines:
Plaintiff Selects Sample and Provides Information to Defendant:

August 30, 2013

Defendant Produces a Representative Sample Vaughn Index:

October 1, 2013

Plaintiff and Defendant Submit a Joint Status Report:

November 1, 2013

11. In the event that the parties are able to resolve or further limit the issues before the Court,
the parties will promptly inform the Court and propose any appropriate modifications to the
schedule.

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Date: August 29, 2013

Respectfully submitted,

MARC ROTENBERG
Executive Director

STUART F. DELERY
ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/
Alan Jay Butler
ALAN JAY BUTLER
(DC Bar # 1012128)
Appellate Advocacy Counsel
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
Tel: (202) 483-1140
Fax: (202) 483-1248
butler@epic.org

/s/
Kimberly L. Herb
KIMBERLY L. HERB
(Illinois Bar # 6296725)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
Tel: (202) 305-8356
Fax: (202) 616-8470
Kimberly.L.Herb@usdoj.gov

Attorneys for Plaintiff

Attorneys for Defendants

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