United States District Court, S.D. New York
AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs,
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE, Defendants.
MEMORANDUM OPINION AND ORDER
M. WOOD United States District Judge
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
Executive Order 12, 333
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),
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
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.
The FOIA Requests
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.
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
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
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
¶ 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.
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.
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.
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.
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
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).
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)).
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.
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:
 it forces the government to analyze carefully any
material withheld,  it enables the trial court to fulfill
its duty of ruling on the applicability of the exemption, 
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).
"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.
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.
Adequate Searches Plaintiffs challenge the adequacy
of the searches conducted by CIA, FBI, and NSD. Pl. Reply 38,
44-45, ECF No. 82.
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)).
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.
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.
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
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,
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.
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.
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.
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.