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American Civil Liberties Union v. U.S. Department of Justice

United States District Court, S.D. New York

January 18, 2017



          P. Kevin Castel, United States District Judge

         Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (together, “ACLU”), commenced this Freedom of Information Act (“FOIA”) action seeking the disclosure of a May 2003 memorandum concerning common commercial service agreements written by the Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”) (the “Memorandum”).

         Currently before the Court are the parties' cross-motions for summary judgment which raise the issue of whether the government may withhold the Memorandum under any one of three claimed FOIA exemptions. Because this Court finds that the government properly withheld the Memorandum pursuant to FOIA Exemption 1(for classified national defense or foreign policy secrets), and Exemption 3 (for documents specifically exempted from disclosure by statute), defendants' motion for summary judgment is granted and plaintiffs' cross-motion for summary judgment is denied.


         On March 10, 2015, Plaintiffs submitted FOIA requests to the DOJ, OLC, Federal Bureau of Investigation (“FBI”), and the National Security Agency (“NSA”). (Compl. ¶ 11.) Each of these requests sought an OLC memorandum written in 2003 regarding “common commercial service agreements.” (Id. ¶¶ 1, 12.) For several years, Senator Ron Wyden has been urging the DOJ to withdraw and release this memorandum warning that it is “inconsistent with the public's understanding of the law” and is relevant to ongoing Congressional debate regarding cybersecurity legislation. (Id. ¶ 2.) Senator Wyden has also suggested that executive branch officials have relied on the allegedly problematic conclusions in the Memorandum in the past and could rely on them again in the future. (Id.)

         The OLC responded to the ACLU's FOIA request in a letter dated March 16, 2015. (Colborn Decl. Ex. B.) It acknowledged receipt of the request and confirmed that it had located the Memorandum. (Id.) However, the OLC informed the ACLU that it was withholding the Memorandum pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), “because it [was] protected by the deliberative process and attorney-client privileges.” (Colborn Decl. Ex. B.) In addition, the OLC informed the ACLU that the Memorandum may also be exempt from disclosure pursuant to FOIA Exemption 3, 5 U.S.C. § 552(b)(3), which protects information “specifically exempted from disclosure by statute, ” id., and that it was classified (making it potentially exempt under FOIA Exemption 1, 5 U.S.C. § 552(b)(1), as well). (Colborn Decl. Ex. B.)

         The ACLU timely appealed the denial of its request on May 14, 2015. (Id. Ex. C.) After receiving no response from the government, the ACLU filed the instant action on November 17, 2015 alleging that the OLC's denial of its request violates FOIA, 5 U.S.C. § 552.[1](Compl. ¶¶ 22, 25.) On December 7, 2015 the DOJ Office of Information Policy (“OIP”) responded to the ACLU's appeal noting that because the ACLU had filed this lawsuit, the OIP could not act on the FOIA appeal and was therefore closing the appeal file. (Colborn Decl. Ex. D.)

         In its motion for summary judgment, the government claims that the Memorandum was appropriately withheld pursuant to FOIA Exemption 1 (for classified national security information), Exemption 3 (for documents protected from disclosure by statute), and Exemption 5 (for privileged materials). (Defs' Mot. Summ. J. 1.) In its cross-motion for summary judgment, the ACLU maintains that none of the cited exemptions apply and the document, or portions thereof, must be disclosed. (Pls.' Cross-Mot. Summ. J.) Because the Court finds that the Memorandum was properly withheld under Exemptions 1 and 3, the Court declines to address the applicability of FOIA Exemption 5.


         I. Legal Standard.

         “Summary judgment is the preferred procedural vehicle for resolving FOIA disputes.” Nat'l Immigration Project of the Nat'l Lawyers Guild v. U.S. Dep't of Homeland Sec., 868 F.Supp.2d 284, 290 (S.D.N.Y. 2012) (internal quotation marks omitted). “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 [one of the nine] exemption[s] to the FOIA.” Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). To meet this burden, the agency may rely on affidavits or declarations that “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (quoting Larson v. Dep't of State, 656 F.3d 857, 862 (D.C. Cir. 2009)). These agency declarations are “accorded a presumption of good faith.” Carney, 19 F.3d at 812 (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).

         FOIA expressly provides for de novo review of an agency's decision to withhold a document. 5 U.S.C. § 552(a)(4)(B). In the context of national security, however, a court “must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.” Am. Civil Liberties Union v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (internal quotation marks omitted). “Although conclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not, standing alone, carry the government's burden, ” Larson, 565 F.3d at 864, “[agency] declarations . . . need not contain ‘factual descriptions that if made public would compromise the secret nature of the information, '” N.Y. Times Co. v. U.S. Dep't of Justice, 872 F.Supp.2d 309, 314 (S.D.N.Y. 2012) (quoting Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384-85 (D.C. Cir. 1979)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Wilner, 592 F.3d at 73 (quoting Larson, 565 F.3d at 862).

         II. FOIA Exemption 1.

         “FOIA represents Congress's balance ‘between the right of the public to know and the need of the Government to keep information in confidence.'” N.Y. Times Co., 872 F.Supp.2d at 314 (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). Therefore, while FOIA “strongly favor[s] public disclosure of information in the possession of federal agencies, ” Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999), the statute recognizes “that public disclosure is not always in the public interest, ” and thus ...

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