The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal officer of the facts and circumstances relied upon to justify the government's belief that the target of surveillance is a foreign power or an agent of a foreign power. Once a FISC judge receives a warrant application, the judge can order approval of the surveillance only if the judge finds that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Because the orders only authorize surveillance up to 90 days, the government must file an application for an extension that meets the same requirements as the initial warrant application and obtain a renewal order from the FISC for continued surveillance. For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On July 22, 2015, the New York Times and reporter Charlie Savage filed this suit against the United States Department of Treasury (Treasury) in the U.S. District Court for the Southern District of New York. According to their complaint, the plaintiffs alleged that Mr. Savage had submitted a FOIA request to the Treasury on September 30, 2014, seeking disclosure of "documents showing the legal conclusions accepted by the Treasury Department as the governing legal protocol for under what circumstances, if any, and at what stage of the process, FISA's notice provision applies to the Office of Foreign Assets Control sanctioning decisions and challenges to them." The Treasury's Office of Foreign Assets Control (OFAC) administers sanction programs against foreign individuals and entities; among these programs are the Counter Terrorism Sanctions, which are aimed at those individuals and entities associated with terrorism. Because FISA contains a notice provision that requires the Government to disclose when it uses information from its surveillance in any "proceeding" against people, there had been questions of whether this notice provision applied to OFAC terrorism sanctions.

On April 13, 2015, the Treasury denied Mr. Savage's FOIA request, stating that OFAC had located only one document responsive to the FOIA request, but that this document was exempt from disclosure due to attorney-client privilege and deliberative law privilege. After unsuccessfully filing an appeal with the Treasury, the plaintiffs alleged in this lawsuit that the Treasury had no lawful basis under FOIA for withholding the requested document, which the plaintiffs viewed as the agency's "working law." Accordingly, the plaintiffs requested that the court order the Treasury to provide the requested documents.

On December 23, 2015, the Treasury filed a motion for summary judgment. It argued that the document was properly withheld and that the document could not be considered "working law" since the document's legal analysis had not been adopted by the Treasury and was not being used as a reference document by OFAC. The Treasury further argued that the document was protected by attorney-client privilege because the document memorialized preliminary advice that Treasury attorneys developed and communicated to OFAC officials regarding their obligations under FISA. Moreover, the document was protected by "deliberative process" or "executive" privilege, which protects the decisionmaking processes of the executive branch, because it was prepared "as part of the Treasury's decisionmaking process regarding OFAC's legal obligations under FISA."

On August 2, 2016, United States District Judge Edgardo Ramos partially granted the Treasury's motion for summary judgment as to the withholding of the document in question. However, Judge Ramos directed the Treasury to submit affidavits or declarations describing the adequacy of its initial search for documents responsive to Mr. Savage's FOIA initial FOIA request.

On September 22, 2016, the Treasury submitted two declarations. The first declaration was by M. William Schisa, Senior Counsel in the Office of the Chief Counsel, Foreign Assets Control at the Treasury. Mr. Schisa stated that he had identified the document in question as the only potentially responsive document in his possession or control and that he was confident that there were no other potentially responsive documents in his possession or control. He detailed the search terms he used and the locations he searched, both physical and electronic. The second declaration was by Marshall H. Fields, Jr., Assistant Director, Information Disclosure and Records Management Division of OFAC. He summarized the steps his office took in responding to Mr. Savage's FOIA request, provided an overview of OFAC's record system, and outlined additional searches his office conducted during the course of this litigation. He concluded that the search methods utilized by his office would have located additional records if any additional records responsive to Mr. Savage's FOIA request existed.

On October 20, 2016, the parties stipulated to settle their claims. The plaintiffs stated that they no longer wished to further contest the adequacy of the Treasury's search. Judge Ramos approved the stipulation.

Lisa Limb - 02/26/2019


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