United States District Court, S.D. New York
For Plaintiffs: Patrick C. Toomey, Esq., Alexander A. Abdo, Esq., Jameel Jaffer, Esq., American Civil Liberties Union, New York, NY; Arthur N. Eisenberg, Esq., Beth Haroules, Esq., New York Civil Liberties Union Foundation, New York, NY; Charles S. Sims, Esq., Richard I. Haddad, Esq., Proskauer Rose LLP, New York, NY.
For Defendants: Emily E. Daughtry, Esq., John D. Clopper, Esq., U.S. Attorney's Office, SDNY, New York, NY.
MEMORANDUM & ORDER
WILLIAM H. PAULEY III, United States District Judge.
Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (together, " ACLU" ), filed this Freedom of Information Act action seeking documents relating to the Government's use of section 215 of the USA PATRIOT Act. After the ACLU filed this case, an unprecedented national security leak led to widespread publication of classified documents concerning section 215 and reshaped this litigation. Both parties move for summary judgment on the documents the Government has withheld. For the following reasons, the Government's motion is granted in part, and the ACLU's motion is denied in part. The Government is directed to submit documents to this Court, and the remainder of the motions will be decided following in camera inspection.
After the September 11th attacks, Congress amended the Foreign Intelligence Surveillance Act to expand the Government's authority to investigate potential terror threats. Specifically, section 215 of the USA PATRIOT Act authorized judges of the Foreign Intelligence Surveillance Court (FISC) to order the " production of any tangible things (including books, records, papers, documents, and other items)" if certain statutory requirements are met. See Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified at 50 U.S.C. § 1861).
In May 2011, the ACLU submitted a FOIA request to four agencies within the Department of Justice--the National Security Division, the Office of Information Policy, the Office of Legal Counsel, and the FBI--seeking " records concerning the Government's interpretation or use of Section 215." Compl. ¶ ¶ 22, 28. In August 2011, the Government responded to the ACLU's request, releasing three documents in full and withholding others. Decl. of Jennifer L. Hudson ¶ (ECF No. 87).
In October 2011, the ACLU filed this action challenging the Government's response. The ACLU's FOIA request overlapped with a FOIA request by The New York Times that sought a report to Congress from the Attorney General and Director of National Intelligence concerning the use of section 215. See N.Y. Times Co. v. U.S. Dep't of Justice, 11 Civ. 6990 (WHP) (S.D.N.Y.). The ACLU, The New York Times, and the Government all moved for summary judgment with respect to that report. After reviewing the report in camera, this Court granted summary judgment for the Government. N.Y. Times Co. v. Dep't of Justice, 872 F.Supp.2d 309 (S.D.N.Y. 2012).
Following that decision, the ACLU narrowed its FOIA request. Later in 2012, the Government supplemented its initial production, releasing additional documents but continuing to withhold many others. Early in 2013, the parties each moved for summary judgment with respect to the withheld documents.
The posture of this action then changed dramatically. On June 5, 2013, The Guardian published a classified FISC " Secondary Order" issued under section 215 directing telecommunications provider Verizon to provide the National Security Agency " on an ongoing daily basis . . . all call detail records or 'telephony metadata'" for all telephone calls on its network from April 25, 2013 to July 19, 2013. See In re Prod. of Tangible Things, No. B.R. 13-80, slip op. at 24, at *3 (F.I.S.C. Apr. 25, 2013). This document, leaked by former NSA contractor Edward Snowden, was the beginning of an " unprecedented unauthorized disclosure of TOP SECRET documents," touching " on some of the U.S. Government's most sensitive national security programs, including highly classified and on-going signals intelligence collection programs." Hudson Decl. ¶ 17 (emphasis in the original). The Government acknowledged the existence of an NSA program that had been collecting bulk telephony metadata--but not call contents--under section 215 since 2006. See Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT ACT (Aug. 9, 2013).
The Government asked this Court to defer decision on the pending summary judgment motions while it assessed the impact of Snowden's leaks. Letter from AUSA John D. Clopper, June 7, 2013 (ECF No. 62). The President instructed the Director of National Intelligence to determine what information could be declassified in light of the unauthorized disclosures. Hudson Decl. ¶ 24; Executive Order 13526 § 3.1(c)-(d). Thereafter, the Government began " a large-scale, multi-agency review process" to determine what additional information could be released. Hudson Decl. ¶ 25. In the course of that review, the Government released a redacted copy of the report that was the subject of this Court's decision in New York Times Co., 872 F.Supp.2d 309. See 2011 Report on the National Security Agency's Bulk Collection Programs for USA PATRIOT Act Reauthorization.
As the declassification process unfolded, the parties withdrew their summary judgment motions. And in August 2013, this Court directed the Government to continue
its review process and make rolling productions to the ACLU. ECF No. 71. Ultimately, the Government released over 1,000 pages of material.
In February 2014, the ACLU narrowed its request again to " fully withheld opinions or orders of the Foreign Intelligence Surveillance Court that relate to the bulk collection of any information (i.e., not just telephony metadata)." Email from Patrick Toomey, Esq., Feb. 7, 2014 (Ex. A to Deck of John Clopper (ECF No. 86)). The Government provided a Vaughn index containing eight entries purporting to list the documents responsive to the narrowed request that had been withheld in full. Hudson Deck Ex. A. (ECF No. 87-1), That index essentially lists three categories of documents:
1. August 2008 FISC Opinion: One six-page FISC opinion, dated August 20, 2008. Non-identical duplicates of this document are #13A, 50, and 82A in the Government's Vaughn index.
2. October 2006 FISC Orders: Four FISC orders, each dated October 31, 2006, ranging in length from 4 to 19 pages and which largely overlap with one another. These documents are #77B, 77C, 79, and 81J in the Government's Vaughn index.
3. Unspecified Additional FISC Orders: An unspecified number of other FISC orders issued between March 9, 2006 and June 30, 2011. These documents are collectively listed as ...