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Case Name ACLU v. FBI NS-NY-0008
Docket / Court 1:11-cv-07562-WHP ( S.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Internet Metadata
Foreign Intelligence Surveillance Act -- Telephony Metadata
Foreign Intelligence Surveillance Court
Attorney Organization ACLU Chapters (any)
Case Summary
On October 26, 2011, the ACLU filed a lawsuit in the U.S. District Court for the Southern District of New York against the Department of Justice and the Federal Bureau of Investigation to compel the defendants to comply with its request for documents under the Freedom of Information Act ("FOIA"), 5 ... read more >
On October 26, 2011, the ACLU filed a lawsuit in the U.S. District Court for the Southern District of New York against the Department of Justice and the Federal Bureau of Investigation to compel the defendants to comply with its request for documents under the Freedom of Information Act ("FOIA"), 5 U. S. C. § 552. The plaintiff sought the release of any and all records about the government's use and interpretation of USA Patriot Act Section 215 that authorized the government to obtain "any tangible thing" that was "relevant to" a terrorism investigation. The plaintiff alleged that the defendant had violated 5 U.S.C. § 552(a)(3), 552(a)(4), and 552(a)(6) by failing to make responsible efforts to search for the requested records, and failing to grant the plaintiff’s requests for waivers and/or limitations of fees, and failing to promptly process the plaintiff’s request and release the requested records. The plaintiff further alleged that the defendant had wrongfully withheld records under 5 U.S.C. § 552(b)(1) for reasons of national security and that it had exhausted its administrative remedies to obtain them.

On December 9, 2011, Judge William H. Pauley approved the parties’ stipulation to narrow the scope of the plaintiff’s FOIA request to the following documents.
1. Legal opinions or memoranda concerning or interpreting USA Patriot Act Section 215;
2. Guidelines for government personnel regarding the use of USA Patriot Act Section 215;
3. Reports provided to Congress by the defendants concerning the government’s interpretation or use of USA Patriot Act Section 215;
4. Rulings, opinions, or memoranda of the Federal Intelligence Surveillance Court (FISC) concerning USA Patriot Act Section 215; and
5. Legal opinions or memoranda concerning rulings, opinions, or memoranda of the FISC interpreting USA Patriot Act Section 215.
Judge Pauley also issued an order that gave the defendants until March 15, 2012 to process and produce these documents or notify the plaintiff of any complete or partial withholdings of these documents pursuant to FOIA exemptions.

On February 27, 2012, the defendants filed a motion for partial summary judgment regarding a report that had been received by congressional intelligence committees on the intelligence collection authorities authorized under USA Patriot Act Section 215. Judge Pauley had previously held the report to be within the scope of the plaintiff’s FOIA request, and the New York Times had filed a parallel lawsuit against the defendants to obtain it. (New York Times v. Department of Justice). The defendants argued that:
1. They had properly withheld the report under 5 U.S.C. § 552(b)(1) for reasons of national security because public disclosure of the requested report would expose sensitive intelligence sources and methods to adversaries of the United States.
2. They had also properly withheld the report under 5 U.S.C. § 552(b)(3) for being exempted from disclosure by statute because the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Protection Act of 2004, protected intelligence sources and methods from unauthorized disclosure.

On March 26, 2012, the plaintiff filed a cross motion for partial summary judgment regarding the report that had been received by congressional intelligence committees. It argued that:
3. The report cannot be withheld in its entirety under 5 U.S.C. § 552(b)(1) or 552(b)(3) because it contains “secret law” in the form of the government’s legal interpretation of its authority to collect “any tangible things” pursuant to USA Patriot Act Section 215.
4. The court, at a minimum, should conduct a private judicial review of an unredacted version of the report and order the defendant to the release segregable portions of it that describe the defendants’ legal interpretation of US Patriot Action Section 215.

On May 17, 2012, Judge Pauley, having conducted a private judicial review of the requested report, granted the defendants’ motion for summary judgment. The judge held the defendants had properly withheld the report in its entirety because it contained information that could be used by the United States’ adversaries to threaten its foreign intelligence capacities and all non-exempt portions of the report were inextricably intertwined with the report’s exempt portions that they could not be released in a redacted version of the report (872 F.Supp. 2d. 309).

In the meantime, from March 2012 to August 2012, the defendants released several hundred pages of documents but withheld several documents for reasons of personal privacy, national security, and interagency or intra-agency deliberative process.

On December 13, 2012, the plaintiff limited the scope of its FOIA request to information about the types of information and “tangible things” the government believed Patriot Act Section 215 allowed it to collect and relevance standard the government used to determine whether Section 215 applied.

On February 8, 2013, the defendants released parts of thirty-five documents relating to congressional reports and withhold the remaining parts of these documents under 5 U.S.C. § 552(b)(1) for reasons of national security. The defendants also withheld the following documents in full:
1. Six documents in possession of the FBI under 5 U.S.C. § 552(b)(7)(e) for being law enforcement techniques;
2. The Weich Letter under 5 U.S.C. § 552(b)(1) for reasons of national security;
3. The Census Memorandum under 5 U.S.C. § 552(b)(5) for being part of the interagency or intra-agency deliberative process; and
4. More than Seventy-four documents in possession of the NSD under 5 U.S.C. § 552(b)(1) for reasons of national security; twenty-four related to congressional reporting; nine of which related to internal government communication and analyses; forty of which related to guidelines and training documents; and an unspecified number related to FISC materials, opinions, and/or orders.
The defendants also provided Judge Pauley with a classified Vaughn Index that listed and described the withheld FISC documents for private judicial review. The defendants did not disclose the Vaughn Index to the plaintiff. Finally, the defendants filed a motion for summary judgment on their full and partial withholdings and argued that:
1. They had properly withheld documents for reasons of national security, statutory exemption, deliberative process, and law enforcement techniques, and
2. They had produced all reasonably segregable portions of the documents.

On April 26, 2013, the defendants filed a supplemental memorandum to their motion for summary judgment. They clarified that one of the withheld NSD document was also exempt from disclosure under 5 U.S.C. § 552(b)(5) for being part of the interagency or interagency deliberative process. They also noted that all the NSD documents were also withheld under 5 U.S.C. § 552(b)(3) for reasons of statutory exemption pursuant to the National Security Act of 1947.

On May 10, 2013, the plaintiff further reduced the scope of its FOIA request to the Census Memorandum and all the NSD documents except for the one withheld under 5 U.S.C. § 552(b)(5). The plaintiff also filed a cross motion for summary judgment and argued that:
1. Submitting a classified Vaughn Index for private judicial review without disclosure to the plaintiff, was procedurally improper as the defendants had yet not released a sufficiently detailed public explanation of their withholdings.
2. Legal interpretations of public law were not exempt from disclosure under 5 U.S.C. § 552(b)(1) or 5 U.S.C. § 552(b)(3).
3. FISC rules did not bar the defendants from disclosing FISC opinions under FOIA; and
4. The Census Memorandum could not be withheld as a deliberative product under 5 U.S.C. § 552(b)(5) because it embodied the defendants’ working law, or alternatively, because the defendant had adopted and relied upon it.

On June 6, 2013, the Director of National Intelligence (DNI) decided to declassify certain information related to the “business records” provision of the Foreign Intelligence Surveillance Act in response to publication of FISC orders in the Guardian.

On July 31, 2013, the defendants released parts of two congressional reports to the plaintiff and withheld the remaining parts under 5 U.S.C. § 552(b)(1) for reasons of national security and under 5 U.S.C. § 552(b)(3) for reasons of statutory exemption pursuant to the National Security Act of 1947.

On August 13, 2013, the parties agreed to withdraw their motions for summary judgment because the defendants required additional time to reprocess the documents contested in this lawsuit and determine what effect, if any, the DNI’s declassification decision had on their disclosure.

From September 2013 to January 2014, the defendants released parts of more than a thousand pages from dozens of documents, including parts of several FISC orders and legal opinions.

On February 7, 2014, the plaintiff further revised the scope of its FOIA request to fully withheld FISC opinions or orders that related to bulk collection of any information.

On April 4, 2014, the defendants filed motion for summary judgment and a Vaughn Index that referenced at least eight FISC orders and legal opinions that they were withholding in full and provided justifications for these withholdings. The defendants argued that these orders and opinions were properly withheld under 5 U.S.C. § 552(b)(1) for reasons of national security and under 5 U.S.C. § 552(b)(3) for reasons of statutory exemption pursuant to the National Security Act of 1947.

On May 2, 2014, the plaintiff filed a cross motion for summary judgment. It argued the following:
1. The withheld FISC orders contained legal reasoning and publicly acknowledged information that the government could not withhold under 5 U.S.C. § 552(b)(1) or 5 U.S.C. § 552(b)(3); and
2. Judge Pauley should evaluate the withheld FISC orders listed in the Vaughn Index in a private judicial review.

On July 8, 2014, the defendants released parts of three FISC orders in the public record that the plaintiff had identified as being absent in the Vaughn Index and the defendants had failed to locate in their previous search for documents within the scope of the plaintiff’s revised FOIA request.

On October 6, 2014, Judge Pauley granted in part the defendants’ motion for summary judgment. He found that the defendants did not have to confirm or deny the existence of FISC orders and legal opinions that related solely to the bulk collection of information other than telephone metadata or release these orders and opinions if they existed. Lacking faith in the defendants’ segregation determinations, the Judge also ordered the defendants release the remaining items in their Vaughn Index for private judicial review. (59 F.Supp.3d 584).

On October 24, 2014, the defendants submitted copies of the FISC orders and legal opinions withheld in full for private judicial review. They also filed a supplemental memorandum to their motion for summary judgment. They reiterated their argument that the FISC orders and legal opinions contained no reasonably segregable, disclosable information and were properly withheld in full under 5 U.S.C. § 552(b)(1) for reasons of national security and under 5 U.S.C. § 552(b)(3) for reasons of statutory exemption pursuant to the National Security Act of 1947.

On March 31, 2015, Judge Pauley granted the remaining part of the defendants’ motion for summary judgment. He found that the FISC orders and legal opinions contained no reasonably segregable, disclosable information and were properly withheld in full under 5 U.S.C. § 552(b)(1) for reasons of national security and under 5 U.S.C. § 552(b)(3) for reasons of statutory exemption pursuant to the National Security Act of 1947. (2015 WL 1566775).

The case is closed.

The case is cross-referenced to New York Times v. Department of Justice, which is also closed.

Jessica Kincaid - 06/10/2014
Chris Opila - 04/01/2018


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Issues and Causes of Action
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Issues
General
Confidentiality
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) Department of Justice
Federal Bureau of Investigation
Plaintiff Description The ACLU
Indexed Lawyer Organizations ACLU Chapters (any)
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief Litigation
Case Closing Year 2015
Case Ongoing No
Case Listing NS-DC-0026 : In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08] (FISC)
NS-NY-0003 : ACLU v. Clapper (S.D.N.Y.)
NS-NY-0019 : The New York Times v. United States Department of Justice (S.D.N.Y.)
Docket(s)
1:11-cv-07562-WHP (S.D.N.Y.)
NS-NY-0008-9000.pdf | Detail
Date: 03/31/2015
Source: PACER [Public Access to Court Electronic Records]
General Documents
Freedom of Information Act Request
NS-NY-0008-0001.pdf | Detail
Date: 05/31/2011
Source: ACLU
Complaint for Injunctive Relief [ECF# 1]
NS-NY-0008-0002.pdf | Detail
Date: 10/26/2011
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Law in Opposition to Plaintiffs' Cross Motions for Summary Judgment and Partial Summary Judgment and in Further Support of the Government's Motion for Summary Judgment and for Partial Summary Judgment [ECF# 23]
NS-NY-0008-0007.pdf | Detail
Date: 04/23/2012
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 31] (872 F.Supp.2d 309) (S.D.N.Y.)
NS-NY-0008-0004.pdf | WESTLAW| LEXIS | Detail
Date: 05/17/2012
Source: PACER [Public Access to Court Electronic Records]
Memorandum & Order [ECF# 110] (59 F.Supp.3d 584) (S.D.N.Y.)
NS-NY-0008-0006.pdf | WESTLAW| LEXIS | Detail
Date: 10/06/2014
Source: PACER [Public Access to Court Electronic Records]
Judgment [ECF# 118] (S.D.N.Y.)
NS-NY-0008-0009.pdf | Detail
Date: 03/31/2015
Source: PACER [Public Access to Court Electronic Records]
Judges Pauley, William H. III (S.D.N.Y.)
NS-NY-0008-0004 | NS-NY-0008-0006 | NS-NY-0008-9000
Plaintiff's Lawyers Abdo, Alex (New York)
NS-NY-0008-0001 | NS-NY-0008-0002 | NS-NY-0008-9000
Eisenberg, Arthur (New York)
NS-NY-0008-0002 | NS-NY-0008-9000
Haddad, Richard Inad (New York)
NS-NY-0008-0002 | NS-NY-0008-9000
Haroules, Beth (New York)
NS-NY-0008-0002 | NS-NY-0008-9000
Jaffer, Jameel (New York)
NS-NY-0008-0002 | NS-NY-0008-9000
Kaufman, Brett Max (New York)
NS-NY-0008-9000
Sims, Charles S. (New York)
NS-NY-0008-0002 | NS-NY-0008-9000
Toomey, Patrick Christopher (New York)
NS-NY-0008-9000
Youngs, Stewart Andrew (New York)
NS-NY-0008-9000
Defendant's Lawyers Clopper, John Dalton (New York)
NS-NY-0008-0007 | NS-NY-0008-9000
Daughtry, Emily E. (New York)
NS-NY-0008-9000

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