The FISMA Focus IPD

A federal judge in Washington today voided a proposal that would have given the U.S. Justice Department the authority to take back documents inadvertently disclosed in a public records suit over a cybersecurity program.

The judge, Gladys Kessler of Washington federal district court, also struck a proposed protective order that would have kept secret from the public, at least temporarily, any information the government provided to the Electronic Privacy Information Center in the litigation. Kessler’s ruling is here.

DOJ lawyers pressed for the protective order and claw back deal, calling the provisions a “safety net” in the event the government publicly disclosed classified, exempt information. EPIC sued for records about a cybersecurity pilot program, conducted by the Department of Homeland Security and Defense Department, that the government says is intended to help defense contractors thwart cyber attacks. The challengers are concerned about any potential privacy invasion concerning government monitoring of Internet use.

“A protective order in a Freedom of Information Act matter would be contrary to law and would make it more difficult for the public to obtain information about the government’s activities,” Ginger McCall, director of EPIC’s open government program, said in an e-mail today. “We were surprised that the Department of Justice was advocating for such an order.”

A DOJ trial attorney, Lisa Marcus of the Civil Division’s federal programs branch, was not immediately reached for comment about Kessler’s ruling.

DOJ attorneys said in court papers in December that the protective order and claw back agreement would account for the government’s “legitimate concern that a rushed schedule may result in inadvertent disclosure of sensitive and/or classified, exempt material.”

The judge’s decision was issued a day after a hearing on the dispute. The privacy group’s lawyers had earlier asked Kessler to reconsider an order in which she directed the attorneys in the case to develop a proposed protective order and an agreement that would allow the government to take back documents inadvertently produced.

At yesterday’s hearing, Kessler questioned the length of time it’s taken the government to process the request for documents. Marcus described various complications, including the sensitive nature of the requested information and the fact several agencies are tied up in the review process. EPIC filed suit last March.

Kessler today took a shot at the pace, noting that the government, in recent months, asked on several occasions for more time—including two 10-day extensions and, then, a 16-month extension. (Kessler had earlier ordered the production of all documents and an index of information by August 2012.)

“There is no question the government didn’t take seriously its obligation” under the court’s first scheduling order in May 2012, Kessler wrote today.

In the last two months, the government has processed—but not disclosed—4,000 potentially responsive pages. More than 5,000 pages remain to be reviewed. Kessler said today that given the recent burst of activity in the review process “the government finally woke up and did take seriously” her court order.

The challengers haven’t received a single page. Government officials have applied certain exemptions. Other documents, DOJ lawyers said, are not responsive to EPIC’s request for information about the cybersecurity program.

Kessler said the government is no longer required to produce documents on a “rolling” basis. The government wasn’t keen on that process. Releasing all of the documents at once, the government said in its court papers, gives public records officials at federal agencies “increased knowledge about the universe of information in the collection before finalizing release decisions.”

Kessler said in her order today that the government must continue to review at least 1,500 pages of documents per month. The judge gave the government a deadline in April to produce all non-exempt documents to EPIC.

The lawyers will then litigate into the fall, according to a new schedule, over any information the government wants to shield from public review.