                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 ELECTRONIC FRONTIER
 FOUNDATION,

           Plaintiff,
                  v.                                     Civil Action No. 07-0656 (JDB)
 UNITED STATES DEPARTMENT OF
 JUSTICE,

           Defendant.


                                            ORDER

       Before the Court is [40] the Department of Justice's motion for summary judgment. The

Electronic Frontier Foundation has indicated that it does not oppose that motion, with one

exception. See Pl.'s Mem. in Supp. of Cross-Motion for Summ. J. ("Pl.'s Mem.") [Docket Entry

43], at 1. That exception is the Department's "continued withholding of Intelligence Oversight

Board Case Numbers" under exemption two of the Freedom of Information Act, 5 U.S.C. §

552(b)(2). Id. The Foundation cross-moves for partial summary judgment on that issue. But the

Department is not withholding Intelligence Oversight Board Case Numbers under exemption

two. Indeed, in its own motion for summary judgment, the Department asserted that it was no

longer withholding the Case Numbers at all, and would be releasing that information to the

Foundation. See Def.'s Mem. in Supp. of Mot. for Summ. J. [Docket Entry 40], at 17 n.12.1 And


       1
         In its cross-motion for summary judgment, the Foundation indicated that it believed the
Department of Justice's decision to release the Intelligence Oversight Board Case Numbers
extended to all documents, not only those "contained in the representative sample of documents
designated by the parties." Pl.'s Mem. at 4. The Department concurred in this assessment. See
Def.'s Reply in Supp. of Mot. for Summ. J. [Docket Entry 45], at 2; see also Bonner v. Dep't of
State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (documents in a representative sample "count not
the Department has now done so. See Def.'s Status Report [Docket Entry 49], at 1 ("DOJ hereby

reports that it has completed this review and released to plaintiff Electronic Frontier Foundation .

. . [Intelligence Oversight Board] Case Numbers . . . ."). Because the Department voluntarily

agreed to release the Case Numbers before the Foundation filed its cross-motion for partial

summary judgment requesting the same action, there is no basis on which the grant the

Foundation's cross-motion. Accordingly, it is hereby

       ORDERED that the Department of Justice's motion for summary judgment is

GRANTED; it is further

       ORDERED that the Electronic Frontier Foundation's cross-motion for partial summary

judgment is DENIED as moot; and it is further

       ORDERED that this case is DISMISSED.

       SO ORDERED.

                                                    /s/ John D. Bates
                                                     JOHN D. BATES
                                                 United States District Judge

Dated: May 25, 2010




simply for themselves, but for presumably similar non-sample documents still withheld").

                                                -2-
