United States District Court, S.D. New York
AMERICAN LIBERTIES UNION and AMERICAN LIBERTIES UNION FOUNDATION, Plaintiffs,
U.S. DEPARTMENT OF JUSTICE including its components OFFICE OF LEGAL COUNSEL and OFFICE OF INFORMATION POLICY, Defendants.
MEMORANDUM AND ORDER
Kevin Castel, United States District Judge
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”).
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.
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
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.)
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.(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.)
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.
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)).
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).
FOIA Exemption 1.
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 ...