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EFF files suit seeking access to more secret court opinions

WASHINGTON — The Obama administration has failed to turn over documents under public-records requests detailing still-secret court orders about the scope and legality of National Security Agency surveillance, according to a lawsuit filed Thursday in federal court.

The Electronic Frontier Foundation, a civil liberties group, said the Justice Department failed under its legally prescribed deadline to hand over documents in four requests since last year under the U.S. Freedom of Information Act. The requests sought, among other documents, secret opinions from the Foreign Intelligence Surveillance Court exploring whether the NSA violated the law in collecting Americans’ Internet communications.

The Justice Department did not immediately respond to questions about the lawsuit.

The lawsuit comes at a time when the president has promised to be more transparent on how the intelligence agencies conduct surveillance. As part of its response to the fallout from former NSA systems analyst Edward Snowden’s disclosures, the administration has declassified hundreds of pages of documents regarding the secret surveillance programs, including many of the surveillance court opinions.

The organization has aggressively sought access to the secret court’s records, and some recently disclosed documents were the result of those lawsuits. EFF’s most recent FOIA requests, among those challenged Thursday in U.S. District Court for the District of Columbia, also sought opinions from the secret appeals court and, if any were to exist, at the U.S. Supreme Court.

EFF’s lawsuit argues that, in all four of its FOIA requests, a 20-day deadline has since passed that requires the executive branch to provide documents quickly under an “expedited processing” pathway. That process should move an urgent FOIA request for newsworthy records to the front of the line.

Thursday’s lawsuit stems in part from the government’s August 2013 release of declassified secret surveillance court documents, in which the government acknowledged it was ordered to stop scooping up thousands of Internet communications from Americans with no connection to terrorism. The court ruled the NSA’s actions were unconstitutional and ordered the agency to fix the problem, which it did by creating new technology to filter out and restrict access to data most likely to contain Americans’ emails.

Shortly after the government’s release, EFF asked the Justice Department’s National Security Division for copies of court documents referenced in the declassified ruling from October 2011. In the declassified ruling, U.S. District Judge James D. Bates said the government surveillance programs “implicate” a federal law that prohibits electronic surveillance unless it’s authorized by law.

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