UNITED STATES FOREIGN
INTELLIGENCE SURVEILLANCE COURT

WASHINGTON, D.C.

)
IN RE MOTION FOR CONSENT TO DISCLOSURE )
OF COURT RECORDS OR, IN THE ALTERNATIVE, ) Docket No.: Misc. 13-01
A DETERMINATION OF THE EFFECT OF THE )
COURT’S RULES ON STATUTORY ACCESS RIGHTS )
l

OPINION AND ORDER

This matter is before the Foreign lntelligence Surveillance Court ("FISC" or "Court") on
the Motion of the Electronic Frontier Foundation for Consent to Disclosure of Court Records or,
in the Altemative, a Determination of the Effect of the Court’s Rules on Statutory Access Rights,
which was submitted on May 23, 2013 ("EFF Motion"), and the Opposition of the United States
thereto, which was submitted on June 7, 2013 ("Gov’t Opp.").

EFF and the Govemment are engaged in litigation in the United States District Court for
the District of Columbia regarding EFF’s request pursuant to the Freedom of Information Act
("FOIA") for disclosure of particular FISC records in the Government’s possession - two
versions of the same Court opinion (hereinafter referred to collectively as the "Opinion"). §
Gov’t Opp at 1. The Govemment has argued in the District Court that the Rules of this Court
prohibit disclosure of the Opinion to EFF pursuant to FOIA. §§e _ig The District Court has
granted EFF’s unopposed motion to stay the proceedings in the FOIA litigation, apparently for

the purpose of allowing EFF to request relief from this Court regarding the claimed prohibition.

_S_g EFF Motion at 4; Gov’t Opp. at 2.

In its Motion to this Court, EFF requests either: (l) "entry of an order in which this Court
notes its consent (or lack of opposition) to the disclosure of the material EFF seeks should such
material be found to be non-exempt under the provisions of FOIA, subject to any security
procedures the Court deems appropriate"; or (2) "a determination that the FISC rules do not
prohibit disclosure of the requested material in a manner that would supersede a judicial
determination that such material is subject to disclosure under FOIA." EFF Motion at 7-8. The
Govemment responds that the Court should deny the EFF Motion "both because it is outside this
Court’s jurisdiction and because there is good reason not to vacate the seal on the opinion."
Gov’t Opp. at l.

The Court concludes that it has jurisdiction to adjudicate the EFF Motion and that the
FISC Rules do not prohibit the Govemment’s disclosure of the Opinion in the event it is
ultimately determined by the District Court to be subject to disclosure under FOIA.

I. T he EFF Motion is Within the Jurisdiction of this C0urt.

"[T]he FISC is an inferior federal court established by Congress under Article III," and
like all other such courts, "‘has supervisory power over its own records and files."’ In re Motion
for Release of Court Records, 526 F. Supp. 2d 484, 486 (FISA Ct. 2007) (quoting §§

Wamer Commc’ns Inc., 435 U.S. 589, 598 (1978)). In a prior matter involving a motion by the

 

American Civil Liberties Union ("ACLU") for access to certain FISC records, this Court held
that it had jurisdiction to entertain the motion, explaining that "it would be quite odd if the FISC
did not have jurisdiction in the first instance to adjudicate a claim of right to the Court’s very

own records and files." lgl_. at 487. The Govemment asserts that the same reasoning is

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inapplicable here because, unlike the records sought by the ACLU, which were identified as
being in the Court’s possession, the copies of the Opinion that are sought by EFF are in the
possession of the Government. Gov’t Opp at 3-4. The Govemment also observes that in the
ACLU matter, the movant’s claim of right was directed at the Court itself, while EFF is asserting
a statutory right of access against the Executive Branch. § at 3.

These differences are immaterial to the question of jurisdiction. The very reason the
parties are now before this Court is the Government’s contention (disputed by EFF) that this
Court, by operation of FISC Rule 62, continues to exert authority and control over copies of the
Opinion in the Government’s possession in a marmer that prohibits the disclosure sought by EFF
pursuant to FOIA. The Court has little difficulty concluding that it has jurisdiction to adjudicate
this dispute between the parties over whether the Court has in fact prohibited such disclosure
and, if so, whether the prohibition should be modified or lifted.

II. FISC Rule 62 Does Not Prohibit the Government from Disclosing Copies of the Opinion
to EFF Pursuant to FOIA.

The Court disagrees with the Govemment that FISC Rule 62 prohibits the disclosure of
the copies of the FISC Opinion to EFF under FOIA. Rule 62 provides as follows:

Rule 62. Release of Court Records.

(a) Publication of Opinions. The Judge who authored an order, opinion, or other
decision may sua sponte or on motion by a party request that it be published. Upon such
request, the Presiding Judge, after consulting with other Judges of the Court, may direct
that an order, opinion or other decision be published. Before publication, the Court may,
as appropriate, direct the Executive Branch to review the order, opinion, or other decision
and redact it as necessary to ensure that properly classified information is appropriately
protected pursuant to Executive Order 13526 (or its successor).

(b) Other Records. Except when an order, opinion, or other decision is published or
provided to a party upon issuance, the Clerk may not release it, or other related record,
without a Court order. Such records must be released in conformance with the security
measures referenced in Rule 3.

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(c) Provision of Court Records to Congress.

(l) By the Government. The govemment may provide copies of Court orders,
opinions, decisions, or other Court records, to Congress, pursuant to 50 U.S.C.

§§ 1871(a)(5), 187l(c), or 1881f(b)(1)(D), or any other statutory requirement,
without prior motion to and order by the Court. The govemment, however, must
contemporaneously notify the Court in writing whenever it provides copies of
Court records to Congress and must include in the notice a list of the documents
provided.

(2) By the Court. The Presiding Judge may provide copies of Court orders,
opinions, decisions, or other Court records to Congress. Such disclosures must be
made in conformance with the security measures referenced in Rule 3.

The Govemment contends that Rule 62 has the effect of placing copies of the Opinion in
its possession "under this Court’s seal." Gov’t Opp. at 4. The tenn "seal," however, does not
appear in Rule 62, and contrary to the Govemment’s contention, Rule 62 neither explicitly nor
implicitly places the Govemment’s copies of the Opinion "under seal."

Rule 62 contains four subsections, all of which generally concem the "Release of Court
Records," but each addresses a distinct situation. Three of the four subsections address different
forms of release by the Court or its staff: subsection (a) sets out the Court’s process for
publishing Court opinions; subsection (b) govems the release of Court records by the Clerk; and
subsection (c)(2) provides for the provision of Court records to Congress by the Presiding Judge,
None of these provisions is applicable here.

The only portion of Rule 62 that applies to the disclosure of Court records by the
Executive Branch is subsection (c)(l), which states that the Govemment may, when required by
law, provide FISC records to the Congress without prior motion to and order from the Court.
Subsection (c)(l), which was first adopted in November 2010, was intended to stop the

Govemment’s practice of filing what the Court viewed as unnecessary motions for unsealing

before fulfilling its statutory obligation to submit certain FISC records to Congress. §e_q Rule

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62(c)(l) (citing pertinent statutory provisions). Rule 62(c)(l) does not address other disclosures
by the Govemment of FISC orders or opinions in its possession. By contrast, Rule 62(b)
explicitly prohibits the Clerk of the Court from disclosing FISC records except in two narrow
circumstances. The lack of similar preclusive language in subsection (c)(l) militates against
reading it as barring other, unspecified disclosures by the Govemment of FISC records in its
possession, and the Court concludes that it should not be construed in such a manner.

As the Govemment notes (Gov’t Opp. at 6-7), this Court routinely grants motions by the
Govemment to unseal and release certified copies of FISC records for District Court review in
connection with a decision by the Govemment to use in litigation information derived from
electronic surveillance or physical search conducted under the Foreign Intelligence Surveillance
Act ("FISA"). S_ee 50 U.S.C. §§ l806(f), l825(g). That practice, however, does not support the
Govemment’s interpretation of Rule 62 in this matter, To begin with, the Govemment’s motions
to unseal and release frequently encompass FISC orders that are, by their own terms, explicitly
sealed.' Moreover, such motions always include a request for the release by the Court of
certified copies of FISC records. As discussed above, FISC Rule 62(b) provides that "[e]xcept

when an order, opinion, or other decision is published or provided to a party upon issuance, the

' Some orders of this Court are, by their own terms, sealed or otherwise subject to
restrictions on disclosure. See, e.g., 50 U.S.C. § 1861(c)(2)(C) (requiring that certain Court
orders contain language restricting disclosure). The Govemment does not assert that the Opinion
at issue here contains, or is otherwise subject to, an express sealing provision. Moreover, FISA
requires that certain submissions to the FISC be made "under seal," se_e § §§ 1802(a)(3),
1822(a)(3), 1861 (f)(5), 1881a(g)(1)(A), 1881(a)(k)(2), and that certain Court records be
transmitted "under seal" to the Foreign Intelligence Surveillance Court of Review or the Supreme
Court, s_e§ Ld. §§ 1803(a)(1), 1803(b), 1822(a)(3), 1822(¢), 1822(d), 1861(f)(3), 1881a(h)(6)(B),
1881a(i)(4)(D). None of these provisions is applicable here, and the Govemment does not argue
otherwise.

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Clerk may not release it, or other related record, without a Court order." Because the
Govemment’s motions to unseal and release are seldom, if ever, filed contemporaneously with
the issuance or publication of an order or opinion, Rule 62(b) expressly requires a Court order to
effectuate the requested release of records by the Clerk. Rule 62 imposes no such requirement
for disclosures made by the Govemment pursuant to FOIA.

There is nothing anomalous in the conclusion that the Rules of this Court do not prohibit
the Govemment from disclosing the copies of the Opinion sought by EFF. lt is fundamentally
the Executive Branch’s responsibility to safeguard sensitive national security information. _Sg
Dep’t of Nayy v. Egan, 484 U.S. 518, 527-29 (1988). As a general matter, it would be redundant
for this Court to impose on the Executive Branch additional restrictions on the disclosure of
information about sensitive foreign intelligence activities contained in FISC records beyond
those imposed by Executive Order and statute.z As the Court has previously noted, security
measures required by FISA govern surveillance orders and opinions "in the possession of the
FISC, the [Foreign Intelligence Surveillance] Court of Review, the Supreme Court, a person
rendering assistance [in conducting surveillance], or a district court for review [in litigation], or
even when submitted to Congress." In re Motion for Release of Court Records, 526 F. Supp. 2d
at 490. They do not generally regulate copies of those records in the possession of the Executive

Branch.

2 See, e.g., Exec. Order No. 12,968, 60 Fed. Reg. 40, 245 (Aug. 2, 1995), as amended by
Exec. Order No. 13,467, 73 Fed. Reg. 38,103 (June 30, 2008), set out as note to 50 U.S.C.A.
§ 435; Exec. Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), set out as note to 50 U.S.C.A.
§ 435; seegsg 18 U.S.C. § 798.

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III. Conclusion.

For the foregoing reasons, EFF’s motion is granted in part. The Court holds that FISC
Rule 62 does not have the effect of sealing copies of the Opinion in the Govemment’s possession
and that the Court has not otherwise prohibited the Govemment’s disclosure of such copies in
response to EFF’s FOIA request, This Court expresses no opinion on the other issues presented
in the FOIA litigation, including whether the Opinion is ultimately subject to disclosure under

FOIA. Such questions are appropriately addressed by the District Court in the FOIA litigation.

SO ORDERED, this / 1 day of June, 2013, in Docket No. Misc. 13-01.

Aaeeé\

REGGIE B. wALToN
Judge, United States Foreign
Intelligence Surveillance Court

l, Bever|y C. Queen, Chief Deputy
Clerk, FISC, certify that this document
is a true and correct copy of the
origina|.

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