Litigation

TypeCaseDescriptionYearKeywords

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2004 NIMJ Complaint for Injunctive Relief FOIA, NIMJ Vs Dep't of Defense (DDC 2004) 1-04CV 00312 In This February 2004 Complaint for Injunctive Relief, NIMJ Sued the US Dep't of Defense for Its Wrongful Withholding of Documents Responsive to NIMJ's FOIA Request for All Written and Electronic Communications Received From, or Sent to Any Entity Outside the Dep't of Defense Concerning the President's Military Order of Nov. 13, 2001, the Secretary's Military Commission Orders, and the Military Commission Instructions.2004Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions

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2004 US Motion for Summary Judgment in NIMJ V Dep't of Defense (DDC) 1-04CV 00312 US Motion for Summary Judgment in DC District Court, Asserting That Reasonable Searches for Documents Had Been Made, and Responsive Documents Provided. The US Further Asserted That Withheld Documents Fell Under Exemption 5 (deliberative Process Privilege), Exemption 6 (invasion of Personal Privacy), and Exemption 2, 7A and & 7E.2004Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Personal Information, Invasion of Privacy, Exemption 6, Exemption 2, Exemption 7, Reasonable Search, Declarations

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Amicus of The Reporters Committee of Freedom of the Press in Support OfNIMJ's July 2008 Petition for a Writ of Certiorari, in NIMJ V Dep't of Defense (Supreme Court 2008) 08-125 Reporters Committee for Freedom of the Press Filed This Amicus Supporting the Grant of Certiorari, Arguing That FOIA Exemptions Should Be Narrowly Construed in Order to Meet FOIA's Purpose of Providing Broad Access to Federal Agency Documents. An Overly Broad Interpretation of FOIA's Exemption 5 Dramatically Hinders Oversight of Federal Agencies. The Press Has Often Used FOIA to Obtain Documents Produced by Third Parties, and This Access is Critical to Ensure Public Knowledge of the Process and Influences Affecting the Bush Administration Creation of Military Commissions.2008Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Exemption 5, Deliberative Process Privilege, Consultants, Inter-agency Communications, Intra-agency Communications, Government Oversight

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August 2007 Amicus of the Constitution Project Supporting NIMJ in NIMJ V Dep't of Defense (DC Cir) 06-5242 The Constitution Project Filed This Amicus Brief Supporting Arguing That Despite the Public Interest in the Establishment of Military Commissions and the Tremendous Powers These Commissions Were Granted, the Commissions Were Created Without the Minimum Procedural Protections Guaranteed by the Rule of Law. Instead, Standard Procedural Protections and Principles of Transparency Were Blatantly Circumvented in the Creation of the Military Commission Rules, Deviated from DoD's Rule Making Procedures. The Primary Public Participation in the Creation of These Rules Was Limited to the Communications Between DoD and Handpicked Private Lawyers, Without Making These Private Entities an Advisory Committee, nor Publishing Their Input. The Failure of Transparency in the Rule-making Process Results in No Checks or Oversight of Executive Action. FOIA Exemptions Should Be Narrowly Construed and Not Extended to Cover Communications Such as These.2007Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Consultants

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Brief of NIMJ Appellant in NIMJ V Dep't of Defense (DC Cir) 06-5242 NIMJ Argued That the Plain Language of the FOIA Statute as Explained by Klamath Required That the Communication Be Either Inter- or Intra-agency in Order to Qualify Under Exemption 5. The Circuit Precedent Relied upon by the Panel Had Been Undermined by Klamath. Extension of These Precedents Would to Communications by Volunteer Private Entities Would Undermine the Purpose and History of FOIA and Threaten the Transparency and Accountability Vital to the Rule of Law.2007Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Special Government Employees, Hired Consultants, Vitiate

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DC District Court Opinion in NIMJ V Dep't of Defense (DDC 2005) 1-04CV 00312 DC District Court December 2005 Memorandum Opinion. The District Court Held That Although the Agency Was Not Initially Diligent, That Alone Does Not Demonstrate Bad Faith. Disclosures Made After the Instigation of Litigation Were More Forthcoming. The Court Was Troubled by the DoD's Response to This FOIA Request, Finding That but for the Filing of This Action, the DoD May Never Have Complied with Its Obligations Under the FOIA. Nevertheless, the DoD Has Now Responded to the Plaintiff’s FOIA Request, as It Should Have Done Earlier, the Defendant Has Now Also Adequately Searched for Responsive Documents, a Search That Was Not Conducted in Bad Faith. Moreover, the Defendant Has Properly Withheld Documents Pursuant to Exemption 5. However, the Documents Withheld Pursuant to 10 U.S.C. § 130c Have Not Been Properly Designated as Exempt from Public Disclosure by the Secretary, and Thus the Defendant Has Not Properly Invoked Exemption 3. Nevertheless, This Court Will Afford the Defendant the Opportunity to Correct Its Flawed Assertion of Exemption 3, and Permit It to Refile a Renewed Summary Judgment Motion Before Definitively Concluding That Exemption 3 Has Been Improperly Invoked.2005Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Exemption 3, National Security Official, Determinations, Willful Failure, 10 USC S 103, Summary Judgment

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Defendant's February 2006 Renewed Motion for Summary Judgment Re FOIA Exemption 3 in NIMJ V Dep't of Defense (DDC) 1-04CV 00312 In Response to the District Court's Order Granting It the Opportunity to Cure the Procedural Flaw in Iinvoking Exemption 3, the US Government Renewed Its Motion for Summary Judgment as Relating to Information Protected by FOIA Exemption 3. The Government Submitted an Affidavit of the Deputy Secretary of Defense, an Official Delegated the Secretary of Defense's Power to Make Determinations Under 10 USC S. 301.2006Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withhold, National Security Official, Determinations, 10 USC S 103, Summary Judgment

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Defendant Dep't of Defense's Reply to Plaintiff NIMJ's Opposition to Defense Motion for a Protective Order in NIMJ V Dep't of Defense (DDC) 1-04CV 00312 Defendant-Dep't of Defense Reply to NIMJ's Opposition to a Protective Order.2004Freedom on Information Act, FOIA, Discovery, Limited Discovery, Protective Order

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Defendant Dep't of Defense Motion for a Protective Order in NIMJ V Dep't of Defense (DDC) 1-04CV 00312 The US Goverment Argued Before the District Court That Discovery Should Be Denied Altogether if the Court is Satisfied from the Agency’s Affidavits That No Factual Disputes Remain, and That the Government Must First Be Permitted to Submit Its Dispositive Motion and Supporting Affidavits and Have an Opportunity to Rebut Allegations That Its Affidavits Are Insufficient Before Even Limited Discovery in FOIA Cases is Allowed.2004Freedom on Information Act, FOIA, Discovery, Limited Discovery, Protective Order

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Dep't of Defense Appellee Brief in NIMJ V Dep't of Defense (DDC) 1-04CV 00312 The US Government Argued That Private Consultant Documents Were Properly Withheld Under FOIA Exemption 5 Because They Qualified as Inter-agency or Intra-agency Communications Under Exemption 5, and Klamath Does Not Preclude the District Court's Determination.2007Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Special Government Employees, Hired Consultants, Vitiate

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NIMJ's July 2008 Petition for a Writ of Certiorari, in NIMJ V Dep't of Defense (Supreme Court 2008) 08-125 NIMJ's Petition for a Writ of Certiorari Presented the Question of Whether Documents Submitted by Private Citizens in Response to a Request by a Government Official for Comment on Proposed Rules Qualify as Interagency or Intra-agency Memorandums or Letters Exempt from Disclosure Under Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5), Arguing That the DC Circuit's Broad Construction of FOIA's Exemption 5 Was Inconsistent with Klamath and FOIA's Purpose, and Only Supreme Court Review Can Correct the Error in the Court of Primary FOIA Litigation.2008Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Special Government Employees, Hired Consultants, Vitiate, Klamath

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NIMJ's November 2008 Reply Brief, Petition for a Writ of Certiorari in NIMJ V Dep't of Defense, (Supreme Court 2008) 08-125 NIMJ's November 2008 Reply Brief Seeking Writ of Certiorari, Arguing That the Solicitor General Contention That the Statutory Term Intra-agency’ Should Be Defined as Follows Any Communication Solicited by a Government Official from a Private Party, Provided That the Private Party Does Not Have Its Own Interest in the Matter Has No Relation to the Plain Textual Meaning of the Statute. This Proposed Definition is Inconsistent with the Statute's Plain Meaning and the Purpose of FOIA.2008Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Special Government Employees, Hired Consultants, Vitiate, Klamath

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NIMJ's Petition for Reh'g or Reh'g En Banc, in NIMJ V Dep't of Defense, (DC Cir 2008) 06-5242 NIMJ Sought Rehearing or Rehearing En Banc Because the DC Circuit Opinion Conflicted with Dep't of the Interior V Klamath Water Users Protective Ass'n, 532 US 1 (2001), Binding Supreme Court Precedent and Involved a Question of Exceptional Importance. The Supreme Court in Klamath Forbade Making the Term 'inter-agency' in FOIA Exemption 5 a Purely Conclusory Term. The Panel's Conclusion That a Document Qualifies as Inter-agency if It Involves a Formal Solicitation of Advice from a Discrete Group of Experts, and Therefore Exempt Under Exemption 5, Would Allow the Government to Shield Any Communications from the Public by Requesting Advice from That Individual.2008Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Special Government Employees, Hired Consultants, Vitiate

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NIMJ Plaintiff's August 2005 Reply to US Opposition to Plaintiff's Second Cross Motion for Summary Judgment in NIMJ V Dep't of Defense (DDC) 1-04CV 00312 NIMJ Argued That the US Still Failed to Demonstrate That Exemption 5 Applied to Documents Supplied by Outside Lawyers, Specifically That the Government Declarant Had No Personal Knowledge of Any Understanding on Continued Consultation in 2001 to 2002, and That the Government Failed to Demonstrate Any Expectation of Confidentiality, or Any Special Expertise of the Alleged Consultants. NIMJ Also Argued That the Foreign Government Documents Failed to Meet the Requirements of 10 USC S 130c in Order to Be Exempt Under FOIA Exemption 3, and That the National Security Official Designated by the Statute Had Not Made Any of the Required Determinations. Finally NIMJ Alleged That DoD's Actions in the Case Demonstrated Its Willful Refusal to Acknowledge the Existence of Plainly Responsive Documents or to Account for Them in a Vaughn Index.2005Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, National Security Official, Determinations, Willful Failure, 10 USC S 103, Summary Judgment

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NIMJ Plaintiff's March 2006 Opposition to US Renewed Motion for Summary Judgement in NIMJ V Dep't of Defense (DDC) 1-04CV 00312 NIMJ Opposed the Government's Renewed Motion for Summary Judgment Because the Deputy Secretary of Defense Had Not Made the Required Statutory Determinations Under 10 USC S. 301, Instead Merely Designating the Documents to Be Exempt. As Such, the Govenrment Has Not Cured Its Prior Defects in Invoking 10 USC S 301 and Therefore Withholding the Documents Under Exemption 3. The Delegation Relied upon by the Government Does Not Delegate the Requirement That the Secretary of Defense Act Personally to Invoke 10 USC S. 301.2006Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, National Security Official, Determinations, Willful Failure, 10 USC S 103, Summary Judgmen

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NIMJ V Dep't of Defense (DC Cir 2008) 06-5242 The DC Circuit Upheld the District Court’s Approval of the Denial of 19 Documents Containing the Opinions and Recommendations of Non-governmental Lawyers Whose Opinion the DoD Solicited in Order to Promulgate Regulations Concerning Terrorist Trial Commissions Under FOIA Exemption 5 Because Documents Submitted by Non-agency Parties in Response to an Agency Request for Advice Are Covered by Exemption 5. The Panel Majority Rejected That This Conclusion, Based on Prior Circuit Precedent, Had Been Superceded by the Supreme Court’s Reasoning in Dep’t of the Interior V. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001), Despite the Dissent’s Agreement with This Position.2008Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Consultants, Intra-agency Communications

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Reply Brief of Appellant NIMJ in NIMJ V Dep't of Defense (DC Cir) 06-5242 NIMJ Reply Brief Before the DC Circuit Arguing That the Government's Ad Hoc and Ex Post Facto Use of the Term 'consultant' Would Eviscerate the Plain Language of FOIA's Exemption 5. The US Also Ignores the Import of the Supreme Court's Klamath Decision, and the Government's Blanket Reliance on 'national Security' Should Not Trump the Plain Statutory Language, Congressional Intent, and Purpose Underlying FOIA.2007Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Special Government Employees, Hired Consultants, Vitiate

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US Dep't of Defense Respondent Opposition to a Writ of Certiorari in NIMJ V Dep't of Defense (Supreme Court) 08-125 US Government, Dep't of Defense, Respondent Argued Against the Writ of Certiorari Contending That the Court of Appeals Correctly Held That Communications from a Small Group of Former Government Officials and Academics, Who Were Individually and Directly Solicited by an Agency for Their Expert Advice and Who Were Neither Self-advocates nor Advocates for Others, Constituted “inter-agency or Intra-agency” Communications Exempt from Disclosure Under Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5).2008Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Inter-agency Communications, Consultants, Intra-agency Communications

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US July 2005 Reply to NIMJ Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion for Summary Judgment in NIMJ V Dep't of Defense, (DDC) 1-04CV 00312 The US Opposed NIMJ Motion for Summary Judgment in the DC District Court Arguing That There Had Been No Bad Faith in DoD's Reponse to the FOIA Request, Exemption 5 Protects Communications Between US Government Agencies and Private Experts, Exemption 3 Protects Certain Communications Between the US and the British and Canadian Governments, and Finally That DoD's Search for Responsive Records Was Reasonable.2005Freedom of Information Act, FOIA, Injunctive Relief, Production of Documents, Department of Defense, DoD, Secretary, President's Military Order of November 13 2001, Military Commission Orders, Military Commission Instructions, Vaughn Index, Responsive Documents, Withheld, Exemption 5, Deliberative Process Privilege, Foreign Government Communications, Exemption 3