United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, United States District Judge.
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.
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).
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).
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.
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.
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.
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.
Summary Judgment Standard
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).
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
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
FOIA and Exemption 5
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).
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).
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 ...