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New York Times v. United States Department of Justice

United States District Court, S.D. New York

March 31, 2015


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For Plaintiffs: David E. McCraw, D. Victoria Baranetsky, The New York Times Company, Legal Department, New York, New York.

For Defendant: Carina H. Schoenberger, Assistant United States Attorney, United States Attorney's Office, Southern District of New York, New York, New York.

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DENISE COTE, United States District Judge.

This Opinion addresses cross motions for summary judgment in a Freedom of Information Act (" FOIA" ) action. Plaintiffs, the New York Times and its reporter Michael Schmidt (" Schmidt" ), seek documents relating to changes in the policy of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ) following the United State Supreme Court's decision in United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The plaintiffs challenge ATF's decision to withhold or redact six different items in its document production. The defendant United States Department of Justice (" DOJ" ) contends that the withheld documents or passages are exempt from production under the principles established by FOIA. For the following reasons, the defendant's motion for summary judgment is granted.


The following facts are undisputed. On January 23, 2012, the Supreme Court of the United States held in United States v. Jones that the attachment of a Global-Positioning-System (" GPS" ) tracking device to a vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, was a search within the meaning of the Fourth Amendment and required a warrant under ordinary circumstances. Jones, 132 S.Ct. at 946.

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On June 20, 2012, Schmidt made a FOIA request to ATF's Disclosure Division. Schmidt requested, inter alia, " documents sufficient to show how your agency has advised its agents and employees to use trackers in response to [Jones]" and " documents sufficient to show how your agency advised its agents and employees to conduct surveillance in response to [Jones]." ATF granted the request in part on November 23, 2012, releasing some seventy pages of documents. That production included documents redacted pursuant to three FOIA exemptions: Exemption 5 (deliberative process, attorney-client, and work product privileges); Exemption 6 (privacy); and Exemption 7(E) (investigatory materials). 5 U.S.C. § 552(b)(5)-(7). ATF also advised Schmidt that responsive " documents or portions thereof that did not originate with [ATF] [were] referred to either the Department of Justice's (DOJ) Office of Information Policy or the DOJ's criminal division requesting that those offices respond directly to you." [1] ATF also advised Schmidt that, " [i]nsofar as [the FOIA] request has been denied in part, [he] may submit a request for an administrative appeal . . . ."

Schmidt appealed to the Office of Informational Policy (" OIP" ) on December 19, 2012, insofar as the denial was based on two of the three FOIA exemptions: Exemption 5 and Exemption 7(E). In January 2013, the OIP notified the plaintiffs that it had received the December 19 appeal. OIP never issued any decision on this appeal during the year that followed, and closed the appeal of February 6, 2014, after plaintiffs filed this lawsuit.

On April 8, 2013, in response to ATF's referral, the Criminal Division of DOJ released three more pages, and withheld sixty-eight pages pursuant to Exemptions 5, 6, 7(C), and 7(E).[2] The Criminal Division advised Schmidt of his right to an administrative appeal, and that the appeal must be received within 60 days. OIP responded to ATF's referral on September 26, 2013, for materials originating with the DAG. OIP released some documents and withheld others pursuant to Exemptions 5, 6, and 7(C). OIP also advised Schmidt of his right to an administrative appeal, and the deadline for filing an appeal. Schmidt did not appeal either the Criminal Division decision of April 8 or the OIP decision of September 26.[3]

The plaintiffs filed this lawsuit on January 17, 2014. ATF made an additional referral of documents to the Federal Bureau of Investigation (" FBI" ) on February 20. On March 5, the FBI responded, withholding the referred document pursuant to Exemption 5. The defendant moved for summary judgment on June 12. Plaintiffs cross moved for summary judgment on July 2. On December 29, the defendant was ordered to produce the documents at issue for in camera review. On January 23, 2015, this action was transferred to this Court.

Plaintiffs challenge the withholding or redaction of six items, described hereinafter as Items One through Six. A description

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of the withheld text accompanies the discussion of the items.

In addition to the in camera submission, the evidence submitted with these motions includes: documentation of the plaintiffs' FOIA request and appeal, a Vaughn index[4] describing the withheld content and the exemptions justifying withholding, two declarations from David M. Hardy (" Hardy" ), the Section Chief of the Record/Information Dissemination Section of the FBI, and a declaration from Melissa A. Anderson (" Anderson" ), the attorney who drafted the ATF documents and emails at issue in this litigation. At the time, Anderson was the Deputy Associate Chief Counsel of ATF's Litigation Division. Anderson's declaration describes the process by which she created the ATF documents at issue, as well as the function of these documents. Hardy's first declaration details the FBI's involvement with the FOIA request, and its decision to withhold the document referred to the FBI on February 20, 2014. Hardy's second declaration describes the process of creating the FBI document and its purpose and function.


FOIA was enacted in 1966 " to improve public access to information held by government agencies." Pierce & Stevens Chem. Corp. v. U.S. Consumer Prod. Safety Comm'n, 585 F.2d 1382, 1384 (2d Cir. 1972). It " expresses a public policy in favor of disclosure so that the public might see what activities federal agencies are engaged in." A. Michael's Piano, Inc. v. F.T.C., 18 F.3d 138, 143 (2d Cir. 1994). FOIA requires a federal agency to disclose records in its possession unless they fall under one of nine enumerated and exclusive exemptions. 5 U.S.C. § 552(a)(3)-(b); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). The statutory exemptions " do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Interior and Bur. of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (citation omitted). The exemptions are thus to be " given a narrow compass." Id. (citation omitted); see also Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005).

Summary judgment is the procedural vehicle by which most FOIA actions are resolved. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993). A federal court must " conduct de novo review when a member of the public challenges an agency's assertion that a record being sought is exempt from disclosure." A Michael's Piano, 18 F.3d at 143. " In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing . . . that any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). " Affidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden." Id. Absent any showing to the contrary, " [a]ffidavits submitted by an agency are accorded a presumption of good faith." Id. (citation omitted).

FOIA also requires that " [a]ny reasonably segregable portion of a record

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shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). " This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible record for FOIA purposes." F.B.I. v. Abramson,456 U.S. ...

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