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Case Name ACLU v. U.S. Department of Justice NS-NY-0009
Docket / Court 1:13-cv-07347-GHW ( 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 -- Foreign Targeting (702, 703, 704)
Foreign Intelligence Surveillance Court
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Case Summary
On October 17, 2013, the ACLU filed a lawsuit against the United States Department of Justice (DOJ) in the United States District Court for the Southern District of New York under the Freedom of Information Act (5 U.S.C. § 552) (FOIA). The suit requested an injunction requiring the DOJ to disclose ... read more >
On October 17, 2013, the ACLU filed a lawsuit against the United States Department of Justice (DOJ) in the United States District Court for the Southern District of New York under the Freedom of Information Act (5 U.S.C. § 552) (FOIA). The suit requested an injunction requiring the DOJ to disclose records regarding DOJ's policy on giving notice to criminal defendants against whom it intends to use evidence obtained from warrantless surveillance, including information obtained under surveillance orders authorized by the FISA Amendments Act § 702.

After the suit commenced, the DOJ began processing parts of the ACLU's initial FOIA request. The DOJ found several responsive documents, but withheld them, citing FOIA's Exemption 5, which allows the government to decline to disclose "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). The ACLU responded by challenging the adequacy of the scope of the DOJ's search as well as the application of Exemption 5 to the documents in question. Both parties then filed cross motions for summary judgment.

On March 3, 2015, the District Court (Judge Gregory H. Woods) ruled on the motions for summary judgment, holding that the ACLU's motion was granted with respect to the scope of DOJ's search, and that the DOJ's motion was granted with respect to the applicability of Exemption 5 to the documents that had already been found. The court ordered the DOJ to conduct a new search for documents including "legal memoranda or opinions addressing or interpreting the [FISA Amendment Act's] notice provisions or requirements, as set forth in 50 U.S.C. § 1181e(a) and § 1806(c)." The order required the DOJ to search for any relevant documents without limiting the search to "governing" documents, and to release any responsive documents that didn't fall under a FOIA exemption. Because the granted motions for summary judgment disposed of all issues in the case, the court also ordered the case closed.

On March 5, 2015, the court issued an order reopening the case in order to allow the parties to litigate the issue regarding the search for responsive documents in United States Attorney's Offices that hadn't previously been searched. On April 1, the court required the parties to keep it updated regarding the DOJ's compliance with the disclosure order. Later that year, both parties filed motions for summary judgment. On September 27, 2016, the court issued its order regarding both motions: DOJ's motion for summary judgment was granted in part and denied in part, while the ACLU's cross-motion was granted insofar as it challenged the adequacy of DOJ's Vaughn submissions on behalf of EOUSA and with respect to NSD Doc. No. 7, and was otherwise denied.

The court found that even though the ACLU claimed the DOJ's searches were inadequate, there was no substantive briefing on that point. “[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, 166 F.3d at 489. “[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." Id. The court found that the scope and conduct of DOJ’s searches, as described in DOJ’s briefs and accompanying affidavits, were adequate as to both NSD and EOUSA. The affidavits submitted by DOJ on behalf of NSD and EOUSA described efforts which the court found were “reasonably calculated to discover the requested documents.” Grand Cent. P’ship, 166 F.3d at 489. Accordingly, DOJ’s motion for summary judgment as to the adequacy of its searches was granted, and the ACLU’s cross-motion on the issue was denied.

DOJ subsequently filed another motion for summary judgment. The court reasoned that, because the affidavits submitted by the DOJ adequately demonstrated that the withheld documents were protected work product and did not contain segregable, non-exempt information, they fell under FOIA Exemption 5. Consequently, the DOJ's motion for summary judgment was granted on May 2, 2017. The court then terminated all pending motions and closed the case.

Edward Mroczkowski - 05/04/2015
Esther Vinarov - 03/23/2019


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Issues and Causes of Action
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Issues
Content of Injunction
Required disclosure
General
Records Disclosure
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) US Department of Justice
Plaintiff Description ACLU
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief Declaratory Judgment
Source of Relief Litigation
Filing Year 2013
Case Closing Year 2017
Case Ongoing No
Docket(s)
1:13-cv-07347-GHW (S.D.N.Y.)
NS-NY-0009-9000.pdf | Detail
Date: 05/03/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive Relief [ECF# 1]
NS-NY-0009-0001.pdf | Detail
Date: 10/17/2013
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Memorandum of Law in Support of Their Cross-Motion for Partial Summary Judgment and in Opposition to Defendants' Partial Motion for Summary Judgment [ECF# 24]
NS-NY-0009-0003.pdf | Detail
Date: 08/22/2014
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order (2015 WL 892245) (S.D.N.Y.)
NS-NY-0009-0002.pdf | WESTLAW | Detail
Date: 03/03/2015
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order on Summary Judgment [ECF# 35] (90 F.Supp.3d 201) (S.D.N.Y.)
NS-NY-0009-0005.pdf | WESTLAW| LEXIS | Detail
Date: 03/03/2015
Source: PACER [Public Access to Court Electronic Records]
Order Reopening Case [ECF# 38] (S.D.N.Y.)
NS-NY-0009-0004.pdf | Detail
Date: 03/05/2015
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order Granting in Part Motion for Summary Judgment [ECF# 61] (210 F.Supp.3d 467) (S.D.N.Y.)
NS-NY-0009-0006.pdf | WESTLAW| LEXIS | Detail
Date: 09/27/2016
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order Closing Case [ECF# 69] (252 F.Supp.3d 217) (S.D.N.Y.)
NS-NY-0009-0007.pdf | WESTLAW| LEXIS | Detail
Date: 05/02/2017
Source: PACER [Public Access to Court Electronic Records]
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Judges Woods, Gregory Howard III (S.D.N.Y.) show/hide docs
NS-NY-0009-0002 | NS-NY-0009-0004 | NS-NY-0009-0005 | NS-NY-0009-0006 | NS-NY-0009-0007 | NS-NY-0009-9000
Plaintiff's Lawyers Abdo, Alex (New York) show/hide docs
NS-NY-0009-0001 | NS-NY-0009-9000
Jaffer, Jameel (New York) show/hide docs
NS-NY-0009-0001 | NS-NY-0009-9000
Kaufman, Brett Max (New York) show/hide docs
NS-NY-0009-0001 | NS-NY-0009-9000
Toomey, Patrick Christopher (New York) show/hide docs
NS-NY-0009-0001 | NS-NY-0009-0003 | NS-NY-0009-9000
Defendant's Lawyers Torrance, Benjamin H. (New York) show/hide docs
NS-NY-0009-9000

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