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American Civil Liberties Union v. United States Department of Justice

United States District Court, S.D. New York

May 2, 2017

AMERICAN LIBERTIES UNION, et ano, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          GREGORY H. WOODS, United States District Judge.

         This Freedom of Information Act litigation concerns a request by the American Civil Liberties Union for records pertaining to the United States Department of Justice's policy on giving notice to criminal defendants and others against whom it intends to use evidence derived from warrantless surveillance authorized by the FISA Amendments Act. Two prior rulings of the Court have narrowed the issues in this case significantly. Two questions remain: (1) May the DOJ withhold approximately 45 responsive documents as work product pursuant to FOIA Exemption 5? (2) Do any of the approximately 80 documents withheld by the DOJ under FOIA Exemption 5 contain segregable non-exempt information that must be disclosed? Because the affidavits submitted by the DOJ adequately demonstrate that the documents are protected work product and do not contain segregable information, the DOJ's motion for summary judgment is GRANTED.

         I. INTRODUCTION

         This dispute between the American Civil Liberties Union (“ACLU”) and the United States Department of Justice (“DOJ”) began on March 29, 2013, when the ACLU requested records pertaining to the DOJ's policy regarding the provision of notice to criminal defendants and others against whom it intends to use evidence derived from warrantless surveillance authorized by the FISA Amendments Act, 50 U.S.C. §§ 1881a et seq. (“FAA”). See Complaint, Dkt. No. 1, ¶ 18. The ACLU filed this lawsuit on October 17, 2013, seeking an injunction requiring the DOJ to process its request, after the DOJ failed to respond timely. The full text of the ACLU's FOIA request is provided in the Court's March 3, 2015 and September 27, 2016 orders. Dkt. Nos. 35, 61 (the “2015 Opinion” and “2016 Opinion, ” respectively).

         Although the DOJ has located approximately 80 documents responsive to the ACLU's request, it has not produced any of them to the ACLU. Rather, the DOJ has withheld all responsive documents pursuant to FOIA Exemption 5, which exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .” 5 U.S.C. § 552(b)(5).

         At various stages in this litigation, the ACLU has challenged both the adequacy of the DOJ's searches for responsive documents and the applicability of Exemption 5 to the responsive documents the DOJ has withheld. In the 2015 Opinion and the 2016 Opinion, the Court ruled upon the adequacy of the DOJ's searches and the applicability of Exemption 5 to 36 of the responsive documents the DOJ withheld. The Court concluded that Exemption 5 applied to the documents withheld by the DOJ National Security Division (“NSD”), with the exception of NSD Doc. No. 7. The issues remaining for resolution by the Court are (1) the applicability of Exemption 5 to NSD Doc. No. 7 and to documents withheld by the DOJ Executive Office for United States Attorneys (“EOUSA”) and (2) whether any of the documents properly withheld under Exemption 5 in the first instance contain segregable non-exempt material that must be disclosed to the ACLU.

         In the 2016 Opinion, the Court granted the DOJ the opportunity to further substantiate its claim of work product protection with respect to the EOUSA documents and NSD Doc. No. 7. The Court also ordered the DOJ to conduct a segregability analysis with respect to the NSD documents entitled to protection under Exemption 5. The Court deferred ruling on segregability as to the withheld EOUSA documents and NSD Doc. No. 7 pending its determination regarding the applicability of Exemption 5 to those documents.

         On November 14, 2016, the DOJ filed a renewed motion for summary judgment. Dkt. No. 62. The ACLU opposed that motion on December 14, 2016. Dkt. No. 66. The DOJ's motion seeks a ruling that (1) the EOUSA documents and NSD Doc. No. 7 constitute work product protected from disclosure pursuant to FOIA Exemption 5 and (2) none of the documents the DOJ has withheld on behalf of the EOUSA and NSD contain reasonably segregable non-exempt material that must be disclosed. Because the Court finds that the affidavits submitted by the DOJ in connection with its renewed motion for summary judgment demonstrate that it is entitled to judgment as a matter of law on both issues, the DOJ's renewed motion for summary judgment is granted.

         II. LEGAL FRAMEWORK

         In the 2015 Opinion and 2016 Opinion, the Court discussed in detail the statutes relevant to this dispute, including the relevant provisions of FOIA and its Exemption 5, the Foreign Intelligence Surveillance Act, and the FAA. Familiarity with the 2015 Opinion and 2016 Opinion is presumed. As a result, the Court provides here only a limited discussion of the governing legal principles to aid the reader.

         A. Summary Judgment Standard

         A moving party is entitled to summary judgment if it can “show[ ] that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” while a fact is material if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         To defeat a motion for summary judgment, the non-moving party “must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted). “[M]ere speculation or conjecture as to the true nature of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citations and internal quotations omitted). A party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.

         In determining whether there exists a genuine dispute as to a material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). The Court's job is not to “weigh the evidence or resolve issues of fact.” Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002). Rather, the Court must decide whether a rational juror could find in favor of the non-moving party. Id. “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).

         B. FOIA and Exemption 5

         “Congress intended FOIA to permit access to official information long shielded unnecessarily from public view.” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (citation and internal quotation marks omitted). “FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions.” Id. “It is the responsibility of the federal courts to conduct de novo review when a member of the public challenges an agency's assertion that a record being sought is exempt from disclosure. The burden of proof, upon such review, rests with the agency asserting the exemption, with doubts resolved in favor of disclosure.” A. Michael's Piano, Inc. v. F.T.C., 18 F.3d 138, 143 (2d Cir. 1994) (internal citation omitted).

         FOIA Exemption 5 exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .” 5 U.S.C. § 552(b)(5); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (“Exemption 5 of the FOIA . . . provides that the affirmative disclosure provisions do not apply to ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'”) (citing 5 U.S.C. § 552(b)(5)). “Courts have interpreted Exemption 5 to encompass traditional common-law privileges against disclosure, including the work-product doctrine and . . . deliberative process and attorney-client privileges.” Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005).

         C. Agency Affidavits

         When an agency withholds records in a FOIA case and a civil complaint challenges that decision, the district court must “determine the matter de novo, ” and in such a case, “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B). “An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the applicability of the claimed exemption by affidavit . . . .” Wilner v. Nat. Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (citation omitted); see also Carney, 19 F.3d at 812 (“Affidavits or declarations supplying facts indicating that the agency has ...


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