On October 17, 2013, the ACLU filed this 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 Section 702 of the FISA Amendments Act.
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 November 23, 2015, the DOJ filed a motion for summary judgement on the adequacy of their second search, and claiming that the additional documents found were also entitled to FOIA's Exemption 5 protection. On December 23, 2015 the ACLU filed a cross-motion for summary judgement, challenging the DOJ's motion.
On September 27, 2016 the District Court (Judge Gregory H. Woods) ruled on the motions for summary judgment, holding that the DOJ's motion was granted on the adequacy of their search and that the DOJ's motion was granted in regards to the additional documents, with the exception of one document. The ACLU's motion was denied in part and granted in reference to one of the documents, with the court finding that the DOJ did not provide sufficient information detailing why that document was due protection. The court directed the DOJ to submit revised submissions addressing the document in question and directed them to file a renewed motion for partial summary judgement no later than November 14, 2016.
As of October 6, 2016, the case is still ongoing. Ian Williams - 10/06/2016