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American Civil Liberties Union v. National Secuirty Agency

United States District Court, S.D. New York

March 27, 2017

AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs,
v.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE, Defendants.

          MEMORANDUM OPINION AND ORDER

          KIMBA M. WOOD United States District Judge

         Plaintiffs, the American Civil Liberties Union and the American Civil Liberties Union Foundation, bring this action challenging the nondisclosure of information requested by Plaintiffs pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), from Defendants, the United States National Security Agency ("NSA"), the United States Central Intelligence Agency ("CIA"), the United States Department of Defense ("DoD"), the United States Department of Justice ("DOJ"), and the United States Department of State ("State"). The parties each move for partial summary judgment on the adequacy of certain agencies' searches and the applicability of certain FOIA exemptions to 150 responsive documents that were partially or fully withheld by Defendants. Over the course of briefing these motions, the parties narrowed the range of disputes and focused on certain issues. The Court's discussion below follows the structure of the parties' briefing and is intended to further narrow the range of open issues. For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part, and Plaintiffs' motion is DENIED without prejudice.

         I. BACKGROUND

         A. Executive Order 12, 333

         On December 4, 1981, President Ronald Reagan signed Executive Order 12, 333 ("EO 12, 333"), to "provide for the effective conduct of United States intelligence activities and the protection of constitutional rights." 46 Fed. Reg. 59, 941, 59, 941 (Dec. 4, 1981), amended by E.O. 13, 284, 68 Fed. Reg. 4077 (Jan. 23, 2003), E.O. 13, 355, 69 Fed. Reg. 53, 593 (Aug. 27, 2004), and E.O. 13, 470, 73 Fed. Reg. 45, 328 (My 30, 2008), https://www.cia.gov/about-cia/eol2333.html. The executive order stated that"[t]imely, accurate, and insightful information about the activities, capabilities, plans, and intentions" of foreign entities is "essential to informed decisionmaking in the areas of national security, national defense, and foreign relations, " such that "[c]ollection of such information is a priority objective and will be pursued in a vigorous, innovative, and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded." E.O. 12, 333 § 2.1. E.O. 12, 333 is one of the primary authorities that allow agencies of the intelligence community, such as the NSA and other Defendants, to gather foreign intelligence. See, e.g., NSA, Frequently Asked Questions, http://nsa.gov/about/faqs/oversight-faqs.shtml. The Order allows for the collection, retention, and dissemination of information concerning United States citizens, at home and abroad, in certain limited situations, such as information obtained incidentally to a lawful foreign intelligence investigation. E.O. 12, 333 § 2.3(C); see also Id. §§ 2.3 to .4. Questions have been raised about whether agencies such as the NSA have been collecting data about U.S. citizens that are only tangentially related to foreign investigations. See Pl. Mem. 1-3, ECF No. 70.[1]

         B. The FOIA Requests

         On May 13, 2013, Plaintiffs served substantially similar FOIA requests on seven federal entities: CIA; State; NSA; the Defense Intelligence Agency ("DIA"), an agency within DoD; and three divisions of DOJ: the Federal Bureau of Investigation ("FBI"), the National Security Division ("NSD"), and the Office of Legal Counsel ("OLC"). Second Am. Compl. ¶ 18, ECF No. 44. The request sought from each agency records (1) construing or describing the scope of that agency's authority under E.O. 12, 333; (2) describing the minimization procedures used by the agency; and (3) describing the standards that must be satisfied for collecting, acquiring, or intercepting communications. Id. ¶ 19.

         After corresponding with the agencies and exhausting administrative remedies, Plaintiffs filed this case on December 30, 2013, ECF No. 1, and an amended complaint on February 18, 2014, ECF No. 17. In a stipulation filed on May 9, 2014, the parties agreed to limit the scope of the FOIA requests. ECF No. 30 ("Stipulation"). The Stipulation required NSA, CIA, DIA, FBI, and State to search for and produce five categories of documents:

a. Any formal regulations or policies relating to that Agency's authority under EO 12, 333 to undertake "Electronic Surveillance" (as that term is defined in EO 12, 333) that implicates "United States Persons" (as that term is defined in EO 12, 333), including regulations or policies relating to that Agency's acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority.
b. Any document that officially authorizes or modifies under EO 12, 333 that Agency's use of specific programs, techniques, or types of Electronic Surveillance that implicate United States Persons, or documents that adopt or modify official rules or procedures for the Agency's acquisition, retention, dissemination, or use of information or communications to, from, or about United States persons under such authority generally or in the context of particular programs, techniques, or types of Electronic Surveillance.
c. Any formal legal opinions addressing that Agency's authority under EO 12, 333 to undertake specific programs, techniques, or types of Electronic Surveillance that implicates United States Persons, including formal legal opinions relating to that Agency's acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority generally or in the context of particular programs, techniques, or types of Electronic Surveillance.
d. Any formal training materials or reference materials (such as handbooks, presentations, or manuals) that expound on or explain how that Agency implements its authority under EO 12, 333 to undertake Electronic Surveillance that implicates United States Persons, including its acquisition, retention, dissemination, or use of information or communications to, from, or about United States Persons under such authority.
e. Any formal reports relating to Electronic Surveillance under EO 12, 333 implicating United States Persons, one of whose sections or subsections is devoted to (1) the Agency's compliance, in undertaking such surveillance, with EO 12, 333, its implementing regulations, the Foreign Intelligence Surveillance Act, or the Fourth Amendment; or (2) the Agency's interception, acquisition, scanning, or collection of the communications of United States Persons, whether "incidental" or otherwise, in undertaking such surveillance; and that are or were:
i. Authored by the Agency's inspector general or the functional equivalent thereof;
ii. Submitted by the Agency to Congress, the Office of the Director of National Intelligence, the Attorney General, or the Deputy Attorney General; or
iii. Maintained by the office of the Agency's director or head.

         Stipulation ¶ 3. For the first three categories, the parties agreed that each agency would search for and provide documents "currently in use or effect, or that were created or modified on or after September 11, 2001." Id. ¶ 7(a). For the fourth category, each agency would search for and provide documents "currently in use or effect." Id. ¶ 7(b). For the fifth category, each agency would initially search for and provide documents created or modified on or after September 11, 2001, after which the parties would confer about whether searching for older documents could be undertaken without being unduly burdensome. Id. ¶ 7(c). The parties also agreed to limit CIA's search to certain offices for certain of the requests. Id. ¶ 6.

         Plaintiffs and NSD separately refined the FOIA request, and, by letter dated July 29, 2014, Plaintiffs submitted a new FOIA request that substantially mirrored the requests in the Stipulation. See Decl. of John Bradford Wiegmann ("NSD Decl.") ¶ 6, ECF No. 65; see also Stipulation ¶ 4; ECF No. 50.

         Plaintiffs and OLC separately agreed to narrow the scope of the FOIA request. Stipulation ¶ 2. OLC agreed to search for and produce "[a]ll OLC final advice" that concerned: (1) "the scope and application of the authority of the United States Government to conduct electronic surveillance of the communications of United States persons pursuant to Executive Order 12333, " and (2) "the meaning of the terms 'collection', 'acquisition', and 'interception' as applied to electronic surveillance conducted pursuant to Executive Order 12333." Second Am. Compl. Ex. C, at 1, 3.

         Following each agency's search and production, which concluded May 1, 2015, the parties discussed their disagreements regarding the lawfulness of the agencies' withholdings and redactions and the adequacy of the agencies' searches. Joint Letter 1, ECF No. 52. By joint letter dated December 8, 2015, the parties proposed cross-motions for partial summary judgment related to the agencies' searches and a set of 177 documents that were partially or fully withheld. Id. at 2; see also Def. Mem. Ex. A, ECF No. 59; Decl. of Jonathan Manes ("Manes Decl") Ex. A ("Pl. Index"), ECF No. 71. Specifically, Plaintiffs contend that four categories of documents were improperly withheld: formal legal memoranda, Inspector General and compliance reports, Rules and Regulations, and training and briefing materials. Pl. Mem. 5-9; see also Pl. Index. The letter states that should the Court find that the searches or withholdings were improper, Defendants would agree to conduct further searches or re-process the document withholdings, as appropriate. Joint Letter 2.

         In their reply memorandum dated July 8, 2016, Defendants notified the Court that State had identified an additional set of documents that it needed to review for responsiveness to Plaintiffs' FOIA request. See Def. Reply Mem. 56-57, ECF No. 75; Suppl. Decl. of Erin F. Stein ("Suppl. State Decl") ¶ 2, ECF No. 81. On August 18, 2016, the Court gave Defendants additional time to review those documents for responsiveness. ECF No. 83. By letter dated September 26, 2016, Defendants notified the Court that State had completed its review and located no additional documents responsive to the FOIA request. ECF No. 86. This case was transferred to the undersigned on November 22, 2016.

         II. LEGAL STANDARD

         A. Summary Judgment A moving party is entitled to summary judgment when the record shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those that, under the governing law, may affect the outcome of a case. Id. The moving party must establish the absence of a genuine dispute of material fact by citing to particulars in the record. Fed.R.Civ.P. 56(a), (c); Celotex, 477 U.S. at 322-25; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). If the movant satisfies this burden, the opposing party must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). When deciding the motion, the Court must view the record in the light most favorable to the non-moving party, O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002), although speculation and conclusory assertions are insufficient to defeat summary judgment, see Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003).

         B. FOIA

         "Congress intended FOIA to 'permit access to official information long shielded unnecessarily from public view, '" Milner v. Dep't of the Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)), and accordingly FOIA "calls for 'broad disclosure of Government records, '" N Y. Times Co. v. U.S. Dep't of Justice, 756 F.3d 100, 111 (2d Cir. 2014) (quoting CIA v. Sims, 471 U.S. 159, 166 (1985)). The Government's disclosure obligation is subject to a number of statutory exemptions. Id. "However, 'consistent with the Act's goal of broad disclosure, these exemptions have consistently been given a narrow compass.'" Id. (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001)).

         FOIA cases are regularly resolved on summary judgment. "In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and 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) (citations omitted). "[A]ll doubts as to the applicability of the exemption must be resolved in favor of disclosure." NY. Times, 756 F.3d at 112 (quoting Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009)).

         When an agency withholds records and the requestor challenges such withholdings, the district court must "determine the matter de novo, and may examine the contents of. . . agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions." 5 U.S.C. § 552(a)(4)(B). In Vaughn v. Rosen, the Court of Appeals for the D.C. Circuit held that to adequately justify an alleged exemption, the Government should provide "a relatively detailed analysis in manageable segments." 484 F.2d 820, 826 (D.C. Cir. 1973). Thus, agencies submit Vaughn indexes listing withheld documents and claimed exemptions and Vaughn affidavits that describe the withheld documents and the rationale for withholding them. See ACLU v. U.S. Dep 't of Justice, No. 13 Civ. 7347, 2016 WL 5394738, at *4 (S.D.N.Y. Sept. 27, 2016). A Vaughn submission serves three functions:

[1] it forces the government to analyze carefully any material withheld, [2] it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, [3] and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.

Halpern v. FBI, 181 F.3d 279, 291 (2d Cir. 1999) (alterations in original) (quoting Keys v. U.S. Dep 't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)). "The titles and descriptions of documents listed in a Vaughn index usually facilitate the task of asserting and adjudicating the requester's challenges to the Government's claims of exemption" by "giv[ing] the court and the challenging party a measure of access without exposing the withheld information." N.Y. Times Co. v. U.S. Dep't of Justice, 758 F.3d 436, 439 (2d Cir.), supplemented by 762 F.3d 233 (2d Cir. 2014).

         Where "such declarations are 'not controverted by either contrary evidence in the record nor by evidence of agency bad faith, ' summary judgment for the government is warranted." Id. (quoting Wilner, 592, F.3d at 73). "When the claimed exemptions involve classified documents in the national security context, the Court must give 'substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.'" N.Y. Times, 756 F.3d at 112 (quoting ACLU v. Dep 't of Justice, 681 F.3d 61, 69 (2d Cir. 2012)); see also Wilner, 592 F.3d at 76 ("[Courts] have consistently deferred to executive affidavits predicting harm to national security." (quoting Ctr. for Nat 7 Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003))). "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 v. Dep 't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Accordingly, "the government's burden is a light one." ACLU v. U.S. Dep't of Def., 628 F.3d 612, 624 (D.C. Cir. 2011). However, Vaughn submissions are insufficient where "the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping." Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (quoting Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979)).

         The legal standards applicable to the adequacy of FOIA searches and the four FOIA exemptions connected to these motions are discussed in the relevant sections below.

         III. DISCUSSION

         A. Adequate Searches Plaintiffs challenge the adequacy of the searches conducted by CIA, FBI, and NSD. Pl. Reply 38, 44-45, ECF No. 82.

         i. Legal Standard

         "To prevail on summary judgment, ... the defending 'agency must show beyond material doubt. . . that it has conducted a search reasonably calculated to uncover all relevant documents.'" Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). "The adequacy of a search is not measured by its results, but rather by its method." N.Y.Times, 756 F.3d at 124. "When a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return; in other words, the agency generally need not 'search every record system.' However, an agency 'cannot limit its search to only one record system if there are others that are likely to turn up the information requested.'" Campbell v. U.S. Dep 't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (citation omitted) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).

         "[T]o establish the adequacy of a search, agency affidavits must be relatively detailed and nonconclusory, and submitted in good faith." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 488-89 (2d Cir. 1999) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). "A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment." Oglesby, 920 F.2d at 68; see Iturralde v. Comptroller of the Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003). However, "the law demands only a 'relatively detailed and nonconclusory' affidavit or declaration." Adamowicz v. IRS, 402 F.App'x 648, 650 (2d Cir. 2010) (quoting Grand Cent., 166 F.3d at 488-89). "[A]n agency's search need not be perfect, but rather need only be reasonable, " and the question is "whether the search was reasonably calculated to discover the requested documents." Grand Cent., 166 F.3d. at 489.

         ii. Application

         a. FBI

         Plaintiffs lodge two objections to FBI's search for responsive records. First, Plaintiffs argue that FBI has "failed to provide adequate detail about which files were searched, by whom, using which search terms." Pl. Reply 39; see also Pl. Mem. 58. Second, Plaintiffs contend that FBI improperly limited its search to only a few divisions and units. Pl. Mem. 57; Pl. Reply 40.

         An agency affidavit needs to be "reasonably detailed" in "setting forth the search terms and the type of search performed." Oglesby, 920 F.2d at 68. For instance, in Morley v. CIA, the D.C. Circuit found insufficient a declaration that described that a FOIA request was "divvied up between multiple component units within the CIA" but "provide[d] no information about the search strategies of the components charged with responding to" the request nor "any indication of what each directorate's search specifically yielded." 508 F.3d at 1122. Here, FBI tasked four separate units with searching for responsive documents, but provided no details about how the searches were undertaken. FBI merely states that it "designed and carried out a search tailored to the described scope of responsive records sought, " Decl. of David M. Hardy ("FBI Deck") ¶ 23, ECF No. 63, but that "given the passage of time and the numerous individuals involved in its search, FBI is not in a position to detail all search steps taken by all of its tasked employees, but FBI tasked and gave appropriate search instructions to all relevant personnel and components, and . . . FBI reasonably believes that the search was performed as tasked, " Suppl. Decl. of David M. Hardy ("Suppl. FBI Deck") ¶ 4, ECF No. 78. Although FBI is not required to detail all search steps taken, it must "supply more than 'glib government assertions of complete disclosure or retrieval.'" Nat 7 Immigration Project of the Nat 7 Lawyers Guild v. U.S. Dep't of Homeland Sec, No. 11 Civ. 3235, 2012 WL 6809301, at *1 (S.D.N.Y. Dec. 27, 2012) (quoting Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)). As Plaintiffs rightly state, "searching for records without tracking how those searches are conducted makes it impossible for a reviewing court (or plaintiffs) to determine what the agency has actually done to search its files." PL Reply 40. FBI must, at the least, detail its search with greater specificity, and, if FBI is unable to do so, it may be necessary to conduct, and properly document, additional searches.

         Second, Plaintiffs contend that FBI improperly limited its search to only five offices. FBI circulated the FOIA request to FBI's Corporate Policy Office, Counterintelligence Division, Counterterrorism Division, Training Division, and the Office of the General Counsel Discovery Processing Units. FBI Decl. ¶¶ 21-22. Plaintiffs note two additional divisions where, they suspect, additional documents may reside: the FBI Intelligence Branch, PL Reply 40, [2] and the units outside of the Discovery Processing Units in the Office of the General Counsel, Pl. Mem. 58 n.22 ("It is unclear whether this search of the 'Discovery Processing Units' would encompass all of the responsive files in the [Office of the General Counsel], or solely those that happen to reside within that particular unit."). FBI has discretion to focus its inquiry if additional searches are unlikely to be fruitful, Campbell, 164 F.3d at 28, and has stated that the requests were sent to "locations where responsive documents were reasonably likely to be located, " Suppl. FBI Decl. ¶ 4. FBI has further stated that "[t]here is no indication from the information located as a result of the targeted searches of the specified FBI HQ Divisions/Units that responsible material would reside in . . . any other location." FBI Decl. ¶ 23. FBI has not, however, stated that "no other record system was likely to produce responsive documents." Oglesby, 920 F.2d at 68 (emphasis added). FBI should confirm that no other record system is likely to contain responsive documents, clarify the scope of the search conducted in the Office of the General Counsel, and address whether the Intelligence Branch is likely to produce responsive documents.

         b. NSD

         Plaintiffs raise two objections to NSD's search. First, Plaintiffs note NSD's failure to provide any search terms used in identifying responsive documents. PL Mem. 57; PL Reply 42. Second, Plaintiffs take issue with NSD's method of identifying custodians by focusing exclusively on seven attorneys' files in two NSD offices. Pl. Mem. 56-57; Pl. Reply 41.

         For the reasons discussed above, NSD's failure to identify any search terms or methods makes summary judgment in its favor inappropriate. See, e.g., Morley, 508 F.3d at 1122. Accordingly, NSD is directed to explain its search with sufficient specificity, as outlined in this opinion.

         Second, Plaintiffs challenge the scope of the NSD's search. NSD has explained that "[there] is no central NSD record repository or searchable database that contains all responsive records" and thus identified seven current NSD attorneys who "have worked on issues concerning electronic surveillance under" E.O. 12, 333, and stated that "no other NSD personnel were likely to have responsive records that these seven attorneys did not also have." NSD Decl. ¶ 8; see also Suppl. Decl. of John Bradford Wiegmann ("Suppl. NSD Decl.") ¶ 11, ECF No. 80. Six of these attorneys work in the NSD's Office of Intelligence, and one attorney works in the NSD's Office of Law and Policy. NSD Decl. ¶ 8. The NSD also searched through historical policy files, NSD Decl. ¶ 9; Suppl. NSD Decl. ¶ 11, and concluded that "it is unlikely that any additional significant records would be located in the files of another employee within the Office of Law and Policy, " Suppl. NSD Decl. ¶ 11 (emphasis added). This is insufficient: an agency may not limit a search because additional responsive documents may not be "significant." Oglesby, 920 F.2d at 68 (stating that agency affidavit must "aver[] that all files likely to contain responsive materials (if such records exist) were searched" (emphasis added)). In addition, the time limitation agreed to in the Stipulation does not cover NSD, and the revised NSD FOIA request contains no time limitation whatsoever. See Second Am. Compl. Ex. ...


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