Case 1:13-cv-07347-RWS Document 1 Filed 10/17/13 Page 1 of 10
DIS~3ouCIV JUDGE SWEET UNITED STATES SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant.

Case No. - - - Hon. _ _ _ _ __

Arthur N. Eisenberg (AE-2012) New YorkCivil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 aeisenberg@nyclu.org
October 17, 2013

Patrick Toomey (PT-1452) Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Brett Max Kaufi:nan (BK-2827) American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org

Case 1:13-cv-07347-RWS Document 1 Filed 10/17/13 Page 2 of 10
COMPLAINT FOR INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief, seeking the immediate processing and release of agency records requested by Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation from Defendant Department of Justice (“DOJ”). 2. On March 29, 2013, Plaintiffs submitted a FOIA request (the “Request”) to the DOJ seeking records related to the government’s use of evidence derived from surveillance authorized by the FISA Amendments Act, 50 U.S.C. §§ 1881a et seq. (“FAA”), in criminal prosecutions and the government’s provision of notice in prosecutions involving FAA surveillance. 3. While some components of DOJ have processed Plaintiffs’ request, most have not, and no component has released any responsive record or explained why responsive records are being withheld. 4. The failure of these DOJ components to process and release responsive records is of particular concern because the Request relates to a highly controversial surveillance authority whose wisdom, effectiveness, and legality is a matter of intense and ongoing public debate. Indeed, the debate over FAA surveillance has only grown more pitched since Plaintiffs filed the Request six months ago. Revelations concerning the National Security Agency’s (“NSA”) interception of electronic communications pursuant to the FAA—including the emails, text messages, and phone calls of Americans—have prompted public outcry and calls for legislative reform. The public interest in the release of the requested records is substantial. 5. Plaintiffs now ask the Court for an injunction requiring the DOJ—in particular, its components the National Security Division, the Criminal Division, the Executive Office for
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United States Attorneys (“EOUSA”), and the Federal Bureau of Investigation (“FBI”)—to process the Request immediately. Plaintiffs also seek an order enjoining Defendant from assessing fees for the processing of the Request.
JURISDICTION AND VENUE 6. This Court has both subject-matter jurisdiction of the FOIA claim and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B), (a)(6)(E)(iii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706. 7. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
PARTIES 8. Plaintiff American Civil Liberties Union (“ACLU”) is a nationwide non-profit and non-partisan organization with more than 500,000 members dedicated to the constitutional principles of liberty and equality. The ACLU is committed to ensuring that the American government complies with the Constitution and laws, including its international legal obligations, in matters that affect civil liberties and human rights. The ACLU is also committed to principles of transparency and accountability in government, and seeks to ensure that the American public is informed about the conduct of its government in matters that affect civil liberties and human rights. 9. Plaintiff American Civil Liberties Union Foundation is a separate 501(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. 10. Defendant DOJ is a department of the executive branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). The DOJ is headquartered in Washington, D.C.
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FACTUAL BACKGROUND The FAA’s Notice Requirement 11. The FAA gives the government broad authority to monitor Americans’ international communications. 12. The government is required by statute to notify criminal defendants whenever it intends to use or disclose in a prosecution any information obtained or derived from its surveillance of the defendant’s communications pursuant to the FAA. See 50 U.S.C. §§ 1881e(a), 1806(c). Notice is also required by the Fourth and Fifth Amendments to the United States Constitution. 13. In Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), the government repeatedly assured the Supreme Court that it would notify criminal defendants in prosecutions where it intended to use or disclose evidence derived from FAA surveillance of the defendant. See Br. for Petitioner, Clapper, 2012 WL 3090949, at *8; Reply for Petitioner, Clapper, 2012 WL 5078759, at *15; Tr. of Oral Argument at 2-4, available at http://1.usa.gov/PgNwku. The Supreme Court relied on these representations in its ruling for the government, reproducing the government’s language almost verbatim. See Clapper, 133 S. Ct. at 1154. 14. In testimony before the House Permanent Select Committee on Intelligence on June 18, 2013, FBI Deputy Director Sean Joyce indicated that FAA surveillance was critical to at least three criminal prosecutions. He referenced United States v. Zazi, No. 09-cr-00663 (E.D.N.Y.); United States v. Headley, No. 09-cr-00830 (N.D. Ill.); and United States v. Ouazzani, No. 10-cr-00025 (W.D. Mo.). 15. Senator Dianne Feinstein, chair of the Senate Select Committee on Intelligence, indicated on December 27, 2012, that FAA surveillance had resulted in at least eight other federal criminal prosecutions. She identified United States v. Daoud, No. 12-cr-00723 (N.D. Ill.);
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United States v. Gojali, No. 12-cr-00092 (C.D. Cal.); United States v. Nafis, No. 12-cr-00965 (E.D.N.Y.); United States v. Muhtorov, No. 12-cr-00033 (D. Colo.); United States v. El Khalifi, No. 12-cr-00037 (E.D. Va.); United States v. Osmakac, No. 12-cr-00045 (M.D. Fl.); and United States v. Arbabsiar, No. 11-cr-00897 (S.D.N.Y.). While the Senate Select Committee on Intelligence has since claimed, in a September 16, 2013 letter, that Senator Feinstein did not mean to state that FAA surveillance was used in any or all of these cases, that assertion is difficult to square with her testimony. In urging her colleagues and the public to support reauthorization of the FAA, Senator Feinstein said, “So I believe the FISA Amendments Act is important and these cases show the program has worked.”
16. In the five years since the FAA was enacted, not a single criminal defendant has received notice of the government’s intent to use or disclose FAA-derived evidence.
17. On October 16, 2013, The New York Times reported that the Department of Justice for five years had a policy that deprived criminal defendants of notice that they had been surveilled under the FAA. See Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 16, 2013, http://nyti.ms/1esJy1o. The New York Times reported that when the Solicitor General learned of this policy after the Supreme Court’s decision in Clapper, he concluded that the policy “could not be justified legally.” Id. Lawyers with other agencies— including the NSA, the FBI, and the Office of the Director of National Intelligence—concurred in this conclusion. See id.
The FOIA Request 18. On March 29, 2013, the ACLU submitted a FOIA Request seeking:
a. The case name, docket number, and court of all legal proceedings, including criminal prosecutions, current or past, in which the Department of Justice intends or intended to enter into evidence, or otherwise used or disclosed in
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any trial, hearing, or other proceeding, any information obtained or derived from electronic surveillance pursuant to the authority of the FAA; b. Policies, procedures, and practices governing the provision of notice to “aggrieved persons,” as set forth in 50 U.S.C. § 1881e(a) and § 1806(c), of the government’s intent to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding information obtained or derived from electronic surveillance pursuant to the authority of the FAA; and c. Legal memoranda or opinions addressing or interpreting the FAA’s notice provision or requirements, as set forth in 50 U.S.C. § 1881e(a) and § 1806(c). 19. The Request directed the DOJ to search for responsive records within its individual components, including the National Security Division, the Criminal Division, the EOUSA, the Office of Legal Counsel, the Office of Information Policy, and the Office of the Inspector General. The DOJ forwarded Plaintiffs’ Request to one additional component—the FBI. 20. Plaintiffs sought expedited processing of the Request on the grounds that there is a “compelling need” for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged federal government activity. See 5 U.S.C. § 552(a)(6)(E); 28 C.F.R. § 16.5(d). 21. Plaintiffs sought a waiver of search, review, and reproduction fees on the grounds that disclosure of the requested records is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” See 5 U.S.C. § 552(a)(4)(A)(iii); 28 C.F.R. § 16.11(k).
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22. Plaintiffs also sought a waiver of search and review fees on the grounds that the ACLU qualifies as a “representative of the news media” and that the records are not sought for commercial use. See 5 U.S.C. § 552(a)(4)(A)(ii); 28 C.F.R. § 16.11(d).
The Government’s Response to the Request 23. In spite of the urgent public interest surrounding the requested documents, more than six months after Plaintiffs filed their Request, three components within the DOJ—the National Security Division, the Criminal Division, and the EOUSA—have neither released responsive records nor explained their failure to do so. 24. The twenty-day statutory limit for the DOJ to respond to Plaintiffs’ Request has elapsed. See 5 U.S.C. § 552(a)(6). 25. A fourth DOJ component, the FBI, improperly denied Plaintiffs’ Request in its entirety. Plaintiffs administratively appealed from this denial. 26. The twenty-day statutory limit for the DOJ to respond to Plaintiffs’ appeal of the FBI’s denial has elapsed with no determination. See 5 U.S.C. § 552(a)(6). 27. Plaintiffs challenge the responses of only these four DOJ components.
National Security Division 28. By letter dated April 17, 2013, the National Security Division acknowledged Plaintiffs’ Request. 29. By letter dated April 24, 2013, the National Security Division granted Plaintiffs’ request for expedited processing and a fee waiver. 30. To date, the National Security Division has neither released responsive records nor explained its failure to do so.
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Criminal Division 31. By letter dated April 23, 2013, the Criminal Division acknowledged Plaintiffs’ Request. Without conducting any search of its records, the Criminal Division closed Plaintiffs’ Request because it believed the Request had been misdirected. 32. After consultation between Plaintiffs and Criminal Division staff, the Criminal Division reopened Plaintiffs’ Request on April 30, 2013, which it acknowledged by letter dated May 14, 2013. In the same letter, the Criminal Division deferred Plaintiffs’ request for a fee waiver. 33. By letter dated June 5, 2013, the Criminal Division granted Plaintiffs’ request for expedited processing. 34. To date, the Criminal Division has neither released responsive records nor explained its failure to do so.
Executive Office for United States Attorneys 35. By letter dated July 12, 2013, the EOUSA acknowledged Plaintiffs’ Request. In the same letter, the EOUSA denied Plaintiffs’ request for expedited processing and deferred Plaintiffs’ request for a fee waiver. 36. Plaintiffs administratively appealed from the EOUSA’s denial of expedited processing on July 29, 2013. 37. By letter dated August 13, 2013, the Office of Information Policy stated that it had reversed the EOUSA’s denial of Plaintiffs’ request for expedited processing and it remanded the matter to EOUSA for processing “as quickly as practicable.” 38. To date, the EOUSA has neither released responsive records nor explained its failure to do so.
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Federal Bureau of Investigation 39. By letter dated April 12, 2013, the DOJ FOIA office acknowledged receipt of Plaintiffs’ Request and stated that it was forwarding the Request to the FBI and the EOUSA. 40. By letter dated May 3, 2013, the FBI acknowledged receipt of Plaintiffs’ Request. 41. On June 4, 2013, the FBI denied Plaintiffs’ Request, stating that the first category of records sought was “too broad and vague” and therefore was not obtainable under FOIA. The FBI’s denial did not address the second or third categories of records identified in Plaintiffs’ Request. 42. Plaintiffs appealed from the FBI’s denial of their Request on July 30, 2013. 43. By letter dated August 13, 2013, the Office of Information Policy stated that it had received Plaintiffs’ appeal on August 1, 2013. 44. Plaintiffs have received no determination in response to their appeal from the FBI’s denial of the Request.
CAUSES OF ACTION 45. Defendant’s failure to make a reasonable effort to search for records sought by the Request violates FOIA, 5 U.S.C. § 552(a)(3), and Defendant’s corresponding regulations. 46. Defendant’s failure to promptly make available the records sought by the Request violates FOIA, 5 U.S.C. § 552(a)(6)(A), and Defendant’s corresponding regulations. 47. Defendant’s failure to process Plaintiffs’ request expeditiously and as soon as practicable violates FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendant’s corresponding regulations. 48. Defendant’s failure to grant Plaintiffs’ request for a waiver of search, review, and duplication fees violates FOIA, 5 U.S.C. § 552(a)(4), (a)(6), and Defendant’s corresponding regulations.
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49. Defendant's failure to grant Plaintiffs' request for a limitation of fees violates FOIA, 5 U.S.C. § 552(a)(4), (a)(6), and Defendant's corresponding regulations.
REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
A. Order Defendant and its components the National Security Division, the Criminal Division, the Executive Office for United States Attorneys, and the FBI to immediately process the Request and to release any responsive records not properly withholdable under FOIA;
B. Enjoin Defendant and its components from charging Plaintiffs search, review, or duplication fees for the processing of the Request;
C. Award Plaintiffs their costs and reasonable attorneys' fees incurred in this action; and
D. Grant such other relief as the Court may deem just and proper.

Arthur N. Eisenberg (AE-2012) New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 aeisenberg@nyclu.org
October 17, 2013

Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org
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 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------X

:

:

AMERICAN CIVIL LIBERTIES UNION, et :

al.,

:

:

Plaintiffs, :

:

-against-

:

:

UNITED STATES DEPARTMENT OF

:

JUSTICE,

:

Defendant. :

:

------------------------------------------------------------ X

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: 3/3/2015
1:13-cv-7347-GHW MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:

I.

INTRODUCTION

On March 29, 2013, the American Civil Liberties Union (“ACLU”) requested records from

the United States Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”),

5 U.S.C. § 552. The ACLU’s request sought records regarding DOJ’s policy on giving notice to

criminal defendants and others against whom it intends to use evidence derived from warrantless

surveillance. See Complaint, Dkt. No. 1, at ¶ 18. Faced with DOJ’s failure to respond timely, the

ACLU filed this lawsuit on October 17, 2013, seeking an injunction requiring DOJ to process their

request.

After the commencement of this case, various DOJ components began processing the

ACLU’s request. The National Security Division (“NSD”) identified five responsive documents, all

of which it withheld under FOIA’s 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). The ACLU challenged both the

adequacy of the search and the applicability of Exemption 5 to the withheld documents, and the parties filed cross-motions for summary judgment on these two issues. See Dkt. Nos. 17, 23, 26, 29.
With regard to the adequacy of the search, for the reasons explained below, the Court grants the ACLU’s motion in part. The Court finds that DOJ improperly limited its search under Part 3 of the ACLU’s request by reading the word “governing” into the request where it had not been written. DOJ is ordered to conduct a new search without the improperly-added limiting term and to release any responsive records that do not fall under a FOIA exemption. The ACLU’s motion is denied in part to the extent that it seeks summary judgment on the inadequacy of the remaining aspects of the scope and conduct of DOJ’s search.
On the issue of whether Exemption 5 applies to the withheld documents, for the reasons explained below, the Court grants the government’s motion for summary judgment. Because the Court could not make a de novo determination of Exemption 5’s applicability to the withheld documents based on the government’s Vaughn submissions, the Court ordered DOJ to produce the documents for in camera review.1 After reviewing the documents in camera, the Court agrees with DOJ that all five may be withheld under Exemption 5.
II. BACKGROUND a. The FISA and the FAA
Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) in 1978, which “authorize[s] and “regulate[s] certain governmental electronic surveillance of communications for foreign intelligence purposes.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013) (citing 50 U.S.C. § 1801 et seq.). FISA’s “framework for foreign intelligence surveillance” includes a specialized court, the Foreign Intelligence Surveillance Court (“FISC”), which reviews the government’s applications to conduct electronic surveillance. See id. A FISC judge may issue an order allowing
1 The Court ordered that DOJ produce the documents during a February 5, 2015 telephone conference.
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electronic surveillance, upon application by the government, if she finds that there is probable cause
to believe: (a) “the target of the electronic surveillance is a foreign power or an agent of a foreign
power”; and (b) “each of the facilities or places at which the electronic surveillance is directed is
being used, or is about to be used, by a foreign power or an agent of a foreign power.” 50 U.S.C. §
1805(a)(2).
Information the government collects under FISA may be used in criminal proceedings,
subject to compliance with minimization procedures and authorization by the Attorney General. See
50 U.S.C. § 1806(a), (b). When information collected under FISA is used in such a proceeding, the
government must notify the person against whom it will be used. The statutory notice requirement
for information collected under FISA provides:
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
50 U.S.C. § 1806(c).
In 2008, Congress enacted the FISA Amendments Act (“FAA”), which “left much of FISA
intact but . . . established a new and independent source of intelligence collection authority, beyond
that granted in traditional FISA.” Clapper, 133 S. Ct. at 1144. At issue in this case is part of the FAA
known as Title VII—Section 702 of FISA, codified at 50 U.S.C. § 1881a—which “supplement[ed]
pre-existing FISA authority by creating a new framework under which the Government may seek
the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of
non-U.S. persons located abroad.” Clapper, 133 S. Ct. at 1144. Unlike applications for surveillance 3

under “traditional” FISA, Title VII “does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power,” nor does it “require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur.” Id.
Rather than include a separate statutory provision governing the use of—including provisions of notice to criminal defendants and others—information collected under Title VII, Congress made reference to 50 U.S.C. § 1806, which governs the use of information collected under traditional FISA:
Information acquired from an acquisition conducted under section 1881a of this title [i.e., Title VII] shall be deemed to be information acquired from an electronic surveillance pursuant to subchapter I of this chapter for purposes of section 1806 of this title . . . . 50 U.S.C. § 1881e(a). Thus, information collected under Title VII is subject to the same notice requirements, quoted above, as information collected under traditional FISA. See 50 U.S.C. § 1806(c), supra. b. DOJ’s Provision of Title VII Notice In late 2012 and early 2013, the Solicitor General submitted briefs for and argued Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) before the United States Supreme Court. In his written and oral submissions, the Solicitor General argued that although the plaintiffs in that case did not have standing to challenge Title VII surveillance procedures, criminal defendants would be able to mount such a challenge, since they would be given notice of Title VII material if and when it were used against them. See ACLU’s Memorandum of Law (“ACLU’s Memo”), Dkt. No. 24, at 2-3. The ACLU claims that the Solicitor General later learned that NSD had in fact not been providing defendants with notice of evidence collected under Title VII. See id. at 3. In October 2013, the government provided Title VII notice to a criminal defendant for the first time since the FAA was enacted in 2008. See Charlie Savage, “Federal Prosecutors, in a Policy
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Shift, Cite Warrantless Wiretaps as Evidence,” Toomey Decl., Dkt. No. 25, Exhibit E, at 1. The
ACLU argues that this amounted to a formal change in DOJ’s policy regarding Title VII notice, and
thus that DOJ must disclose written records describing both the prior and current policy. In
support of this contention, the ACLU submitted to the Court a number of news articles chronicling
the internal deliberation process at DOJ in the summer of 2013, regarding the decision to provide
Title VII notice to criminal defendants starting in October 2013. See Toomey Decl., Dkt. No. 25,
Exhibits A-G.
In February 2014, in response to a discovery request by a criminal defendant provided with
Title VII notice, DOJ said that it “had not considered the particular question” before sometime in
2013, but that “after conducting a review of the issue, the Department has determined that
information obtained or derived from [traditional FISA] collection, may, in particular cases, also be
derived from prior Title VII collection, such that notice concerning both [traditional FISA] and Title
VII collections should be given in appropriate cases with respect to the same information.”
Mohamud Discovery Brief, Torrance Decl., Dkt. No. 20, Exhibit A, at 7. Thus, the parties dispute
whether DOJ had a policy regarding Title VII notice prior to 2013 and whether it has a final, written
policy today. The Court need not—and indeed, cannot, with the information currently before it—
resolve this dispute for purposes of deciding the present motion.
c. ACLU’s FOIA Request and DOJ’s Search The ACLU’s March 29, 2013 FOIA request sought three categories of records:
(1) The case name, docket number, and court of all legal proceedings, including criminal prosecutions, current or past, in which the Department of Justice intends or intended to enter into evidence, or otherwise used or disclosed in any trial, hearing, or other proceeding, any information obtained or derived from electronic surveillance pursuant to the authority of the FAA;
(2) Policies, procedures, and practices governing the provision of notice to “aggrieved persons,” as set forth in 50 U.S.C. § 1881e(a) and § 1806(c), of the government’s intent to enter into evidence or
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otherwise use or disclose in any trial, hearing, or other proceeding information obtained or derived from electronic surveillance pursuant to the authority of the FAA; and (3) Legal memoranda or opinions addressing or interpreting the FAA’s notice provision or requirements, as set forth in 50 U.S.C. § 1881e(a) and § 1806(c). Complaint, Dkt. No. 1, at ¶ 18. Part 1 of the request is not at issue in the pending motions. NSD began its search for responsive records on November 8, 2013, a process spearheaded by the Chief of Litigation in NSD’s Office of Intelligence, who searched her own hard-copy and electronic files. Government’s Memorandum of Law (“Govt’s Memo”), Dkt. No. 18, at 7. At her direction, NSD’s FOIA staff consulted with NSD’s Office of Law and Policy, and NSD searched hard-copy and electronic files of attorneys in that office as well. Id. at 8. After reviewing all of the potentially responsive records, NSD identified five documents as responsive, and determined that all five could be withheld under Exemption 5. Id. at 9. By agreement of the parties, the Executive Office for U.S. Attorneys’ (“EOUSA”) search was limited to the U.S. Attorney’s Offices for the Districts of Oregon and Colorado. Id. Each office identified attorneys who had worked on relevant cases and searched their hard-copy and electronic files for responsive records. Id. at 9-11. Searches of the attorneys’ classified computer systems were conducted by EOUSA. Id. at 11. All potentially responsive records were sent to NSD for review; of those determined to be responsive, two had already been identified and withheld by NSD, one had been disclosed to the ACLU previously, and two were disclosed for the first time. Id. III. LEGAL FRAMEWORK a. Summary Judgment Standard A 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper ‘if the
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pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))). 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).
To 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) (quoting former Fed. R. Civ. P. 56(e)). “[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 586.
In 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 resolving cross-motions for summary judgment, “each party’s motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981)).
b. FOIA “Congress intended FOIA to permit access to official information long shielded
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unnecessarily from public view.” Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1262 (2011) (internal quotation omitted). Courts have long understood FOIA to be rooted in “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975) (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) (“S. Rep. No. 813”)). To that end, FOIA provides that, except for records otherwise made available to the public or those falling under an enumerated exemption, “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). “As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act’s nine exemptions.” Sears, 421 U.S. at 136. “These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 131 S. Ct. at 1262; see also U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (“Consistent with the Act’s goal of broad disclosure, these exemptions have been consistently given a narrow compass.”).
“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 citations omitted). “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) (citing 5 U.S.C. § 552(a)(4)(B); EPA v. Mink, 410 U.S. 73, 79 (1973)).
c. Exemption 5 DOJ has invoked FOIA’s Exemption 5, which exempts from disclosure “inter-agency or
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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). “Courts have interpreted Exemption 5 to encompass traditional common-law privileges against disclosure,” including, as relevant here, the deliberative process privilege (sometimes referred to as the “executive privilege”), the attorney work product privilege, and the attorney-client privilege. Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (“[I]t is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil discovery context.”); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999) (“Stated simply, agency documents which would not be obtainable by a private litigant in an action against the agency under normal discovery rules (e.g., attorney-client, workproduct, executive privilege) are protected from disclosure under Exemption 5.”)
1. Deliberative Process Privilege The deliberative process privilege protects records that are: “(1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually related to the process by which policies are formulated.” La Raza, 411 F.3d at 356 (quoting Grand Cent. P’ship, 166 F.3d at 482) (internal alterations and quotation marks omitted). Thus, “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency” fall under the deliberative process privilege, as do “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Grand Cent. P’ship, 166 F.3d at 482. “Crucial” to determining whether the privilege applies “is an understanding of the function of the documents in issue in the context of the administrative process which generated them.” Sears, 421 U.S. at 138; see also Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 858, 859-60 (D.C. Cir.
9

1980). In determining whether a document is predecisional, courts look at factors such as “whether the agency can pinpoint the specific agency decision to which the document correlates and verify that the document precedes, in temporal sequence, the decision to which it relates,” as well as “the identity and position of the authors and recipients of documents because those that are drafted for superiors or decision makers are more likely to be predecisional.” Fox News Network, LLC v. U.S. Dep’t of the Treasury, 678 F. Supp. 2d 162, 167 (S.D.N.Y. 2009) (quoting Grand Cent. P’ship, 166 F.3d at 482) (internal alterations and quotation marks omitted). In determining whether a document is deliberative, courts look at whether the document “is actually related to the process by which policies are formulated,” and assess such factors as “whether the document (i) formed an essential link in a specified consultative process, (ii) reflects the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.” Grand Cent. P’ship, 166 F.3d at 482 (internal citations and alterations omitted).
“The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news . . . .” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001). This realization implicates two concerns: governmental efficiency and the quality of agency decisions. Congress recognized that “efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to operate in a fishbowl,” EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting S. Rep. No. 813, at 9), and that “the ‘frank discussion of legal or policy matters’ in writing might be inhibited if the discussion were made public; and that the ‘decisions’ and ‘policies formulated’ would be the poorer as a result.” Sears, 421 U.S. at 150 (quoting S. Rep. No. 813, at 9).
A. Exceptions to the Deliberative Process Privilege But even if a document is predecisional and deliberative when created, later use of or
10

reference to the document by agency personnel may require its disclosure. A document the government claims is exempt may fall outside Exemption 5 “if it closely resembles that which FOIA affirmatively requires to be disclosed: ‘final opinions . . . made in the adjudication of cases,’ ‘statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register,’ and ‘administrative staff manuals and instructions to staff that affect a member of the public.’” Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184, 195 (2d Cir. 2012) (quoting 5 U.S.C. § 552(a)(2)(A)-(C)). The two long-recognized exceptions to Exemption 5—discussed in more detail below—are: (1) adoption, i.e., “when the contents of the document have been adopted, formally or informally, as the agency position on an issue or are used by the agency in its dealings with the public”; and (2) working law, i.e., “when the document is more properly characterized as an opinion or interpretation which embodies the agency’s effective law and policy.” Brennan Ctr., 697 F.3d at 195 (internal citations and alterations omitted); see also Sears, 421 U.S. at 153, 161; Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 185-87.
2. Attorney Work Product Privilege The attorney work-product privilege “shields materials prepared in anticipation of litigation or for trial by or for a party or by or for that party’s representative (including the party’s attorney, consultant, or agent).” Tax Analysts v. I.R.S., 117 F.3d 607, 620 (D.C. Cir. 1997) (internal alterations omitted) (citing Fed. R .Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947)). The privilege protects not individual attorneys, but the adversarial system itself: “It is believed that the integrity of our system would suffer if adversaries were entitled to probe each other’s thoughts and plans concerning the case.” Coastal States, 617 F.2d at 864. In the FOIA context, the privilege protects “deliberative materials but it also protects factual materials prepared in anticipation of litigation. Any part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under exemption 5.”
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Tax Analysts, 117 F.3d at 620 (internal citations omitted); see also A. Michael’s Piano, Inc. v. F.T.C., 18 F.3d 138, 146 (2d Cir. 1994) (“Although factual materials falling within the scope of attorney work product may generally be discovered upon a showing of ‘substantial need’ under Fed. R. Civ. P. 26(b)(3), under exemption 5 the test is whether information would routinely be disclosed in private litigation.”).
The Second Circuit has not determined whether the work-product privilege—like the deliberative process privilege, discussed supra, and the attorney-client privilege, discussed infra—can be defeated by adoption or use by an agency as working law. See Wood v. F.B.I., 432 F.3d 78, 84 (2d Cir. 2005).
3. Attorney-Client Privilege The attorney-client privilege “protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance,” including “most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance.” Brennan Ctr., 697 F.3d at 207 (internal citations and alteration omitted). Although the scope of this privilege as it relates to government lawyers is not exceptionally clear, “[w]hatever the outer boundaries of the attorney’s work-product rule are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney’s theory of the case and his litigation strategy.” Sears, 421 U.S. at 154. Because of this, and because the Court finds that all of the withheld documents fall under either the deliberative process privilege, attorney workproduct privilege, or both, it need not determine the exact boundaries of the attorney-client privilege in this context. IV. DISCUSSION
a. Scope of Search
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The ACLU argues that NSD improperly read the word “governing” into Part 3 of its request, which seeks: “Legal memoranda or opinions addressing or interpreting the FAA’s notice provision or requirements, as set forth in 50 U.S.C. § 1881e (a) and § 1806(c).” See Complaint, Dkt. No. 1, at ¶ 18 (emphasis added). In contrast, Part 2 of the request seeks “[p]olicies, procedures, and practices governing the provision of notice to ‘aggrieved persons,’ . . . .” Id. (emphasis added). The Court finds that NSD appropriately construed Part 2 to seek final documents, as indicated by the term “governing.” However, for reasons that remain unclear to the Court, NSD “read the two similar requests, 2 and 3, in tandem, and construed request 3 to also reach only final documents.” Govt’s Memo, Dkt. No. 18, at 15. Yet only one page earlier, the government’s own brief explains why this was an erroneous reading of Part 3:
While an agency must “construe a FOIA request liberally,” Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995), the terms of the request, and what the request reasonably describes, still control: an “agency [is] bound to read it as drafted, not as either agency officials or [the requester] might wish it was drafted.” Miller v. CIA, 730 F.2d 773, 776-77 (D.C. Cir. 1984). Govt’s Memo at 14. DOJ is bound to read the ACLU’s request as drafted, and because Part 3 seeks records “addressing or interpreting,” rather than “governing,” NSD improperly limited its search under Part 3. DOJ is ordered to conduct a new search that comports with the actual terms of Part 3 of the ACLU’s request and to release any responsive records that do not fall under a FOIA exemption. The Court finds that the scope and conduct of the search as described in the parties’ briefs was otherwise proper. As the Second Circuit has made clear, “an agency’s search need not be perfect, but rather need only be reasonable.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999). Except as described above, DOJ’s search was reasonable. Thus, the ACLU’s motion for summary judgment is granted in part as to the scope of the search conducted under Part 3, and denied in part as to the remainder of the search protocol.
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b. Vaughn Submissions When an agency withholds records in a FOIA case, the district court must “determine the matter de novo, and may examine the contents of . . . agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions . . . .” 5 U.S.C. § 552(a)(4)(B). In such a case, “the burden is on the agency to sustain its action.” Id. In 1973, in Vaughn v. Rosen, the D.C. Circuit held that in order to assure “that allegations of exempt status are adequately justified . . . courts will simply no longer accept conclusory and generalized allegations of exemptions . . . but will require a relatively detailed analysis in manageable segments.” 484 F.2d 820, 826 (D.C. Cir. 1973). Thus, when invoking a FOIA exemption, agencies submit a “Vaughn index”—a list of withheld documents and claimed exemptions—and a “Vaughn affidavit,” describing the documents and the agency’s rationale for withholding them. Requiring such submissions serves three goals:
(1) it forces the government to analyze carefully any material withheld, (2) it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, (3) and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. Halpern v. F.B.I., 181 F.3d 279, 291 (2d Cir. 1999). Vaughn submissions are meant to “facilitate the task of asserting and adjudicating the requester’s challenges to the Government’s claims of exemption” by “giv[ing] the court and the challenging party a measure of access without exposing the withheld information.” New York Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 439 (2d Cir.) supplemented, 762 F.3d 233 (2d Cir. 2014). “Summary judgment is warranted on the basis of [Vaughn] affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Wilner v. Nat’l Sec. Agency, 592
14

F.3d 60, 73 (2d Cir. 2009) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks and citations omitted)). “[W]hat constitutes a ‘reasonable’ level of specificity [in a Vaughn affidavit] varies depending on the particular context,” and specifically, which exemption is being invoked. Halpern, 181 F.3d at 297 (finding level of specificity insufficient to invoke Exemption 1, but sufficient to invoke Exemption 7(C)). Vaughn affidavits are insufficient where “the agency’s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Quinon v. F.B.I., 86 F.3d 1222, 1227 (D.C. Cir. 1996).
Here, DOJ invoked three privileges under FOIA’s Exemption 5: the deliberative process privilege, the attorney work product privilege, and the attorney-client privilege. The key to determining whether an exemption has been properly invoked with regard to particular documents is “an understanding of the function the documents serve within the agency.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 858 (D.C. Cir. 1980) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975)). In its Vaughn submissions, DOJ provided very little information about the function of the withheld documents or the process of which they were a part. The Vaughn index is vague and conclusory, and the accompanying affidavit does little to fill in the gaps. See Bradley Decl., Dkt. No. 19, at ¶¶ 17-18, 20, 22, Exhibit 1. The Court could not conclusively conclude, based on DOJ’s Vaughn index and accompanying affidavits alone, that the documents in question were appropriately withheld under Exemption 5. Thus, the Court ordered DOJ to produce the documents for in camera inspection before ruling on the applicability of the exemption.2
2 The D.C. Circuit has outlined four situations where in camera review is appropriate: (1) “if the affidavits submitted by the parties are conclusory—if the documents and justifications for withholding are not described in sufficient detail to demonstrate that the claimed exemption applies—in camera review may be necessary to allow meaningful de novo review”; (2) “if there is evidence of agency bad faith—for example, if information contained in agency affidavits is contradicted by other evidence in the record—then, in camera inspection may be necessary to insure that agencies do not misuse the FOIA exemptions to conceal non-exempt information”; (3) “when the requested documents ‘are few in number and of short length,’ in camera review may save time and money”; and (4) “[w]hen the dispute turns on the actual contents of the documents,” as opposed to “when the dispute centers not on the information contained in the documents but on the parties’ differing interpretations as to whether the exemption applies to such information.” Carter v. U.S. Dep’t of
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c. Applicability of Exemption 5 to Withheld Documents After reviewing the five withheld documents in camera, the Court agrees with DOJ that they may be withheld under Exemption 5. Document 1 is a memo from the Office of the Solicitor General and Document 2 is a memo from the National Security Division, each of which, according to the Vaughn index, “[a]ddresses questions regarding notice obligations under [FISA and the FAA].” See Bradley Decl., Dkt. No. 19, Exhibit 1. The memos’ authors—which are not disclosed in the Vaughn index, nor in the documents themselves—make legal recommendations and discuss a broader, ongoing deliberative process regarding the government’s FISA and FAA notice obligations. As such, these memos are both predecisional and deliberative, and thus are exempt from disclosure under the deliberative process privilege. Because each memo discusses particular cases, it also falls within the attorney work product privilege and may be withheld on that ground as well. Document 3 is entitled “Summary of July 17, 2013 Meeting Concerning Interpretation of ‘FISA-Derived’ and Notice of Use of FISA Title VII Information in FISA Suppression Litigation.” See Vaughn Index, Dkt. No. 19, Exhibit 1. This memo summarizes the discussions that took place during a predecisional, deliberative meeting. As such, it goes to the core of what the deliberative process privilege is designed to protect, and its disclosure would lead to exactly the type of “fishbowl” scenario that Congress and the courts have warned against. See, e.g., EPA v. Mink, 410 U.S. 73, 87 (1973) (“[E]fficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to ‘operate in a fishbowl.’”) (quoting S. Rep. No. 813, at 9); Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184, 194 (2d Cir. 2012) (“[T]he quality of administrative decision-making would be seriously undermined if agencies
Commerce, 830 F.2d 388, 392-93 (D.C. Cir. 1987). Although the Court finds no evidence of bad faith, the three other situations are present here.
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were forced to operate in a fishbowl.”). Although the memo describes some conclusions, it also describes open questions and plans for further action and discussion; it does not describe final agency decisions made or implemented. The Court finds that Document 3 is both predecisional and deliberative, and thus it is exempt from disclosure under the deliberative process privilege. As with Documents 1 and 2, to the extent Document 3 discusses particular cases, it also falls within the attorney work product privilege and may be withheld on that ground.
Documents 4 and 5 are memos from the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee and the National Security Division, respectively. Neither is a policy document. Each consists of straightforward legal analysis of potential future actions that DOJ might—or might not—take, and is thus both predecisional and deliberative. Both documents may be withheld under the deliberative process privilege.
d. Inapplicability of Exceptions to Exemption 5 The ACLU argues that these documents fall under one of the exceptions to Exemption 5 because they were either expressly adopted by DOJ or they constitute DOJ’s “working law” on this issue.3 Adoption occurs when “the contents of the document have been adopted, formally or informally, as the agency position on an issue or are used by the agency in its dealings with the public.” Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184, 195 (2d Cir. 2012) (internal citations and alterations omitted). But although adoption may be informal, it must be express. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975) (document is excepted from Exemption 5 when “an agency chooses expressly to adopt or incorporate [it] by reference” (emphasis added)). In
3 The government argues in its’ opposition and reply papers that the ACLU abandoned the adoption argument by relying too heavily on the working law argument. See Government’s Memorandum in Opposition, Dkt. No. 26, at 3 n.2. Because the Court finds that neither the adoption nor working law doctrines are applicable here, it need not address the government’s contention.
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Nat’l Council of La Raza v. Dep’t of Justice, the Second Circuit found that “repeated references . . . by the Attorney General and his high-ranking advisors, the substance of their comments, and the way in which their comments were used—that is, to assure third parties as to the legality of the actions the third parties were being urged to take” amounted to express adoption of a memo that otherwise would have fallen under Exemption 5. 411 F.3d 350, 357 (2d Cir. 2005). In that case, the Circuit found it “clear that the Attorney General and his high-level staff made a practice of using the [memo] to justify and explain the Department’s policy and to assure the public . . . that the policy was legally sound.” Id. at 358. The Circuit distinguished that situation from cases “where an agency has only casually referred to a document, because a casual reference to a privileged document does not necessarily imply that an agency agrees with the reasoning contained in those documents.” Id. at 359 (citing Tigue v. Dep’t of Justice, 312 F.3d 70, 81 (2d Cir. 2005); Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1197 (D.C. Cir. 1991)).
None of the documents at issue here have been expressly adopted by DOJ or incorporated by reference in any final policy statements. As the ACLU points out, anonymous sources have provided information to reporters, including references to the views of the Solicitor General and the internal debates at DOJ. See Toomey Decl., Dkt. No. 25, Exhibits A-G. But this is a far cry from La Raza: there are no statements by the Attorney General or other high-level DOJ officials specifically referencing particular documents, and certainly none expressly relying on the reasoning put forth in a particular document. “[T]here must be evidence that an agency has actually adopted or incorporated by reference the document at issue; mere speculation will not suffice.” La Raza, 411 F.3d at 359 (emphasis in original). There is no such evidence here.
A document may be classified as working law when it “is more properly characterized as an opinion or interpretation which embodies the agency’s effective law and policy.” Brennan Ctr., 697 F.3d at 195 (internal citations and alterations omitted). None of the documents at issue here
18

embody the agency’s effective law and policy; in fact, each recommends possible steps to be taken
before a final policy would be formulated and then, only later, possibly implemented. Documents 1 and 4 were identified in the search of the United States Attorney’s Office in Oregon,4 but this one
data point is insufficient to show that either document was relied upon within DOJ as working law.
The Court agrees with the ACLU that “the question is not about a given document’s label,
but whether its reasoning or conclusions have become the agency’s operative view of its legal
duties.” ACLU’s Reply Memorandum, Dkt. No. 29, at 4 (emphasis in original). But having viewed
the documents in camera, there is no indication that any of the documents have become DOJ’s
effective law and policy. It may be that there is no final, written policy document of the kind the
ACLU seeks. In fact, DOJ has said as much in its submissions:
The Department has for some time considered producing a guidance document for Department prosecutors to address certain issues concerning what information could be considered to be ‘derived from’ electronic surveillance under FISA, such that notice to an aggrieved person of the use of such information in a proceeding may be required. That guidance has not been completed and finalized. Drafts of such guidance exist, as well as documents commenting on the drafts, but the Department continues to deliberate as to the final form and content of the guidance document, in the event a decision is made to issue it.
Wiegmann Decl., Dkt. No. 28, at ¶ 6. But FOIA does not require that agencies create documents,
“[i]t only requires disclosure of certain documents which the law requires the agency to prepare or
which the agency has decided for its own reasons to create.” Sears, 421 U.S. at 162. If DOJ decides
not to create a document outlining its effective law and policy on this issue, that decision does not
automatically convert an earlier, predecisional, deliberative document into “working law.”
Finally, FOIA requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt
4 See Bradley Decl., Dkt. No. 19, at ¶ 26; Toomey Decl., Dkt. No. 25, at ¶ 14.
19

under this subsection.” 5 U.S.C. § 552(b). After in camera review of the documents, the Court finds

there are no reasonably segregable portions of any of the withheld documents that either: (a) do not

qualify for withholding under Exemption 5; or (b) are subject to an exception because the material

has been adopted or used as working law. Thus, DOJ is not required to disclose redacted versions

of any of the withheld documents.

V. CONCLUSION

The ACLU’s motion for summary judgment based on the scope of DOJ’s search is

GRANTED IN PART as described above. The Court orders DOJ to conduct a new search for the

documents requested in Part 3, without limiting that search to “governing” documents, and to

release any responsive records that do not fall under a FOIA exemption. To the extent that the

ACLU’s motion challenges other aspects of DOJ’s search, it is DENIED IN PART. The

government’s motion for summary judgment based on the applicability of Exemption 5 to the

documents listed in the government’s Vaughn index is GRANTED. The ACLU’s cross-motion on

that issue is DENIED.

The Clerk of Court is directed to terminate the motions pending at docket numbers 17 and

23 and to close this case.

SO ORDERED.

Dated: March 3, 2015 New York, New York

__________________________________ GREGORY H. WOODS United States District Judge

20

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------X

:

:

AMERICAN CIVIL LIBERTIES UNION, et :

uno,

:

:

Plaintiffs, :

:

-against-

:

:

UNITED STATES DEPARTMENT OF

:

JUSTICE,

:

Defendant. :

:

------------------------------------------------------------ X

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: 9/27/2016
1:13-cv-7347-GHW MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge: I. INTRODUCTION Before the Court is the second round of cross-motions for summary judgment in this
Freedom of Information Act (“FOIA”) dispute between the American Civil Liberties Union (“ACLU”) and the United States Department of Justice (“DOJ”) that began with a March 29, 2013 request for records from DOJ pertaining to DOJ’s policy on giving notice to criminal defendants and others against whom it intends to use evidence derived from warrantless surveillance. See Complaint, Dkt. No. 1, ¶ 18. The Court must now rule on the adequacy of certain searches performed by DOJ for responsive records, as well as the applicability of FOIA’s Exemption 5 to approximately 80 responsive documents withheld by DOJ. For the reasons that follow, the Court concludes that DOJ is entitled to summary judgment on the adequacy of its searches. The Court also concludes that with one exception, documents withheld by the DOJ National Security Division (“NSD”) have been properly withheld pursuant to the work product privilege, and that the Executive Office for U.S. Attorneys (“EOUSA”) should be granted a further opportunity to

substantiate its claims of work product protection over the documents it has withheld. The parties’
cross-motions for summary judgment are therefore each GRANTED IN PART and DENIED IN
PART.
II. BACKGROUND The ACLU’s FOIA request seeks:
(1) The case name, docket number, and court of all legal proceedings, including criminal prosecutions, current or past, in which the Department of Justice intends or intended to enter into evidence, or otherwise used or disclosed in any trial, hearing, or other proceeding, any information obtained or derived from electronic surveillance pursuant to the authority of the FAA;
(2) Policies, procedures, and practices governing the provision of notice to “aggrieved persons,” as set forth in 50 U.S.C. § 1881e(a) and § 1806(c), of the government’s intent to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding information obtained or derived from electronic surveillance pursuant to the authority of the FAA; and
(3) Legal memoranda or opinions addressing or interpreting the FAA’s notice provision or requirements, as set forth in 50 U.S.C. § 1881e(a) and § 1806(c).
Id.
The ACLU filed this lawsuit on October 17, 2013, seeking an injunction requiring DOJ to
process its request, after DOJ failed to respond timely. After the ACLU filed suit, NSD identified
five responsive documents, all of which of which it withheld under FOIA’s Exemption 5.
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). The ACLU challenged both the adequacy of DOJ’s search and the applicability of
Exemption 5 to the withheld documents, and the parties filed cross-motions for summary judgment
on these two issues. See Dkt. Nos. 17, 23, 26, 29.
On March 3, 2015, the Court granted the ACLU’s motion in part, finding that DOJ had
improperly limited its search under part 3 of the ACLU’s request by reading the word “governing”
into the request where it had not been written, and ordered DOJ to conduct a new search without
2

the improperly-added limiting term and to release any responsive records not entitled to be withheld under a FOIA exemption. See Memorandum Opinion and Order, dated March 3, 2015, Dkt. No. 35, at 2 (“March 3 Order”). The Court denied the ACLU’s motion in part to the extent that it sought summary judgment on the adequacy of the remaining aspects of the scope and conduct of DOJ’s search. On the issue of whether Exemption 5 applied to the withheld documents, the Court, after reviewing the documents in camera, granted DOJ’s motion for summary judgment. Id.
In compliance with the March 3 Order, NSD broadened its search for documents responsive to part 3 of the ACLU’s request by “conduct[ing] another search for materials that were non-governing.” Declaration of Mark A. Bradley, Dkt. No. 49, ¶ 4 (“Bradley Decl.”). Before the previous round of motions for summary judgment, the parties had also agreed that EOUSA’s search would be limited to the U.S. Attorneys’ Offices (“USAOs”) for the Districts of Oregon and Colorado. March 3 Order at 6. Following the March 3 Order, EOUSA searched for all records requested in parts 2 and 3 of the ACLU’s request in the Southern District of California, the Southern District of Florida, the Northern District of Illinois, and the Eastern District of New York. Declaration of John Kornmeier, Dkt. No. 50, ¶ 8 (“Kornmeier Decl.”); see also Declaration of Patrick Toomey, Dkt. No. 54, ¶ 5 (following the March 3 Order, “DOJ then conducted an expanded search, both within NSD and within EOUSA, including in the districts where the parties had previously agreed to defer searches.”). For the remaining 88 USAOs, EOUSA limited its search to “any version of the ‘FISA-derived guidance’ and documents addressing that guidance.” Id. ¶ 9. This round of cross-motions for summary judgment concerns the responses of NSD to part 3 of the ACLU’s request and of EOUSA to parts 2 and 3.
On August 27, 2015, DOJ informed the Court by letter that “the government has provided plaintiffs with indexes of documents responsive to the FOIA request at issue in this action and withheld under FOIA’s exemptions. No non-exempt documents were produced.” Dkt. No. 43.
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NSD has submitted an index of withheld documents containing 37 entries. See NSD Index, Dkt. No. 49-1. EOUSA has submitted an index of withheld documents containing 45 entries. See EOUSA Index, Dkt. No. 50. After the ACLU identified the withheld documents it intended to challenge, on November 23, 2015, DOJ filed a motion for summary judgment as to the adequacy of DOJ’s searches and the applicability of FOIA exemptions to the withheld documents. Dkt. No. 47. On December 22, 2015, the ACLU filed a cross-motion for summary judgment and opposition to DOJ’s motion. Dkt. No. 53. The ACLU is not challenging the withholding of NSD Doc. Nos. 8, 16, 17, 18, 20, and 25, nor the withholding of EOUSA Doc. Nos 11, 16, and 39. ACLU Memo, Dkt. No. 53, at 5.
The ACLU asks the Court to order DOJ to release the documents that have served as DOJ’s “working law” or, in the alternative, to permit the ACLU to conduct limited discovery to establish the extent to which the documents constitute working law which would need to be disclosed notwithstanding Exemption 5. ACLU Memo at 2. The ACLU requests that, if the Court declines to grant discovery, it direct DOJ “at a minimum, to supplement its inadequate declarations and Vaughn indices” with information that would enable to the ACLU to determine if any of the withheld documents constitute working law. Id. at 24. The ACLU also asks the Court to “[f]ind DOJ’s search inadequate because it failed to identify the document that have provided operative guidance to personnel implementing DOJ’s decision to give notice.” Id. at 25.
The primary point of contention between the parties, as presented in their cross-motions for summary judgment, concerns the applicability of FOIA Exemption 5 and the working law exception thereto. As explained below, the Court holds—as it must under controlling Supreme Court precedent—that the working law doctrine cannot abrogate work product protection. The Court further holds that DOJ has sufficiently demonstrated that the documents withheld by NSD constitute work product, with the exception of NSD Doc. No. 7, and that DOJ should be granted
4

an opportunity to provide additional support for its claims of work product for documents withheld by EOUSA and for NSD Doc. No 7.
III. LEGAL FRAMEWORK In the March 3 Order, the Court discussed in detail the statutes relevant to this dispute,
including the relevant provisions of FOIA, the Foreign Intelligence Surveillance Act and the FISA Amendments Act (“FAA”). The Court assumes familiarity with the March 3 Order.
a. Summary Judgment Standard A 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))). 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). To 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) (quoting former Fed. R. Civ. P. 56(e)). “[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 586. In 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
5

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 resolving cross-motions for summary judgment, “each party’s motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981)). “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 omitted).
b. FOIA “Congress 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. FOIA also contains affirmative disclosure and indexing requirements, which provide that “[e]ach agency . . . shall make available for public inspection in an electronic format . . . final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases . . . those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register . . . [and] administrative staff manuals and instructions to staff that affect a member of the public.” 5 U.S.C. § 552(a)(2)(A)-(C). “As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act’s nine exemptions.” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). “These exemptions
6

are explicitly made exclusive, and must be narrowly construed.” Milner, 131 S. Ct. at 1262; see also U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (“Consistent with the Act’s goal of broad disclosure, these exemptions have been consistently given a narrow compass.”).
“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).
c. Vaughn Submissions When an agency withholds records in a FOIA case and a complaint challenges such withholding, the district court must “determine the matter de novo, and may examine the contents of . . . agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions . . . .” 5 U.S.C. § 552(a)(4)(B). In such a case, “the burden is on the agency to sustain its action.” Id. In 1973, in Vaughn v. Rosen, the Court of Appeals for the D.C. Circuit held that in order to assure “that allegations of exempt status are adequately justified . . . courts will simply no longer accept conclusory and generalized allegations of exemptions . . . but will require a relatively detailed analysis in manageable segments.” 484 F.2d 820, 826 (D.C. Cir. 1973). Thus, when invoking a FOIA exemption, agencies submit a “Vaughn index”—a list of withheld documents and claimed exemptions—and a “Vaughn affidavit,” describing the documents and the agency’s rationale for withholding them. Requiring such submissions serves three goals:
(1) it forces the government to analyze carefully any material withheld, (2) it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, (3) and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.
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Halpern v. F.B.I., 181 F.3d 279, 291 (2d Cir. 1999) (quoting Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)). “The titles and descriptions of documents listed in a Vaughn index usually facilitate the task of asserting and adjudicating the requester’s challenges to the Government’s claims of exemption” by “giv[ing] the court and the challenging party a measure of access without exposing the withheld information.” New York Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 439 (2d Cir.) supplemented, 762 F.3d 233 (2d Cir. 2014).
“Summary judgment is warranted on the basis of [Vaughn] affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks and citations omitted)). “[W]hat constitutes a ‘reasonable’ level of specificity [in a Vaughn affidavit] varies depending on the particular context,” and specifically, which exemption is being invoked. Halpern, 181 F.3d at 297 (finding level of specificity insufficient to invoke Exemption 1, but sufficient to invoke Exemption 7(C)). Affidavits submitted by an agency “‘are accorded a presumption of good faith.’” Florez v. Central Intelligence Agency, --- F.3d ---, 2016 WL 3769948, at *2 (2d Cir. July 14, 2016) (quoting Center for Constitutional Rights v. C.I.A., 765 F.3d 161, 166 (2d Cir. 2014)). Vaughn submissions are insufficient where “the agency’s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Quinon v. F.B.I., 86 F.3d 1222, 1227 (D.C. Cir. 1996) (quoting Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381, 1387 (D.C. Cir. 1979)).
d. Exemption 5 FOIA 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
8

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); see also Sears, 421 U.S. at 149 (“[I]t is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil discovery context.”); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999) (“Stated simply, agency documents which would not be obtainable by a private litigant in an action against the agency under normal discovery rules (e.g., attorney-client, work-product, executive privilege) are protected from disclosure under Exemption 5.”) (citations and internal quotation marks omitted).
The attorney work-product doctrine “provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (citation omitted). Documents “should be deemed prepared ‘in anticipation of litigation’ . . . if, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (emphasis in original) (citation omitted). In adopting this formulation of the privilege, the Second Circuit expressly rejected a more limited formulation, which would protect only those documents prepared “primarily or exclusively to assist in litigation.” Id. at 1199.
Of course not every document prepared by a government attorney constitutes work product. Indeed, “if an agency were entitled to withhold any document prepared by any person in the
9

Government with a law degree simply because litigation might someday occur, the policies of the FOIA would be largely defeated.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980). The Court does not assume that any document generated within DOJ’s various agencies is necessarily work product and therefore protected from disclosure under FOIA. However, “[w]hatever the outer boundaries of the attorney’s work-product rule are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney’s theory of the case and his litigation strategy.” Sears, 421 U.S. at 154.
The deliberative process privilege protects records that are: “(1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually related to the process by which policies are formulated.” La Raza, 411 F.3d at 356 (quoting Grand Cent. P’ship, 166 F.3d at 482) (internal quotation marks omitted). Thus, “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency” fall under the deliberative process privilege, as do “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Grand Cent. P’ship, 166 F.3d at 482.
The attorney-client privilege “protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance,” including “most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance.” Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184, 207 (2d Cir. 2012) (internal citations and alteration omitted) (quoting In re Cnty. Of Erie, 473 F.3d 413, 418 (2d Cir. 2007)).
e. Exceptions to Exemption 5 A document that may fit the criteria for withholding under Exemption 5 may nevertheless fall outside of Exemption 5 “if it closely resembles that which FOIA affirmatively requires to be
10

disclosed: ‘final opinions . . . made in the adjudication of cases,’ ‘statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register,’ and ‘administrative staff manuals and instructions to staff that affect a member of the public.’” Brennan Ctr., 697 F.3d at 195 (quoting 5 U.S.C. § 552(a)(2)(A)-(C)). The two longrecognized exceptions to Exemption 5 are: (1) adoption, i.e., “when the contents of the document have been adopted, formally or informally, as the agency position on an issue or are used by the agency in its dealings with the public”; and (2) working law, i.e., “when the document is more properly characterized as an opinion or interpretation which embodies the agency’s effective law and policy.” Id. (internal citations and alterations omitted); see also Sears, 421 U.S. at 153 (“The affirmative portion of the Act, expressly requiring indexing of ‘final opinions,’ ‘statements of policy and interpretations which have been adopted by the agency,’ and ‘instructions to staff that affect a member of the public,’ 5 U.S.C. § 552(a)(2), represents a strong congressional aversion to secret (agency) law and represents an affirmative congressional purpose to require disclosure of documents which have the force and effect of law.”) (internal citation and quotation marks omitted).
IV. DISCUSSION a. Adequacy of Search
DOJ has moved for summary judgment “regarding any issue relating to the searches.” Gov’t Memo, Dkt. No. 45, at 13. Even though the ACLU requests summary judgment “[f]ind[ing] DOJ’s search inadequate,” ACLU Memo at 25, the Court notes that the ACLU has not presented substantive briefing on this 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 (citation and internal quotation marks omitted). “[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. Moreover, as noted above, affidavits
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submitted by an agency are “accorded a presumption of good faith.” Carney, 19 F.3d at 812. In broadening its search for records responsive to part 3 of the ACLU’s request, NSD’s
FOIA staff met with NSD’s Deputy Assistant Attorney General for Law and Policy and the Chief of the Office of Intelligence’s Litigation Section, who then identified attorneys in their sections “responsible for drafting, editing, and maintaining records of the effort to draft the NSD policy on FISA use.” Bradley Decl., Dkt. No. 49, ¶¶ 4-5. DOJ attests that the Deputy Assistant Attorney General for Law and Policy and the Chief of the Office of Intelligence’s Litigation Section are the “heads of the NSD components likely to possess responsive records” because the “Office of Law and Policy develops and implements Department of Justice policies with regard to intelligence, counterterrorism, and other national security matters and provides legal assistance and advice on matters of national security law” and that office “had worked on FISA litigation projects that may have addressed the subject of the request.” Gov’t Memo at 5; Bradley Decl. ¶ 4. Similarly, the “Litigation Section reviews and prepares requests for Attorney General authorization to use FISA information in criminal and non-criminal proceedings.” Bradley Decl. ¶ 4. DOJ’s affidavit states that NSD’s FOIA staff “searched the electronic mail accounts” of the six attorneys involved in the effort to draft the NSD policy on FISA use after having learned that the “governing draft materials were preserved in their electronic mail accounts and were not located in any of their other files.” Id. ¶ 5. The search covered the period from the passage of the FAA (July 10, 2008) to the date of the March 3 Order. Id.
With respect to EOUSA’s “full” searches in the four agreed-upon USAOs, each office’s Anti-Terrorism Advisory Council Coordinator oversaw searches that applied the search terms “aggrieved,” “1881(e)(a),” “FAA,” and “702” to non-classified and classified electronic files. Kornmeier Decl. ¶¶ 14-16. For the searches of the remaining 88 USAOs, those districts’ AntiTerrorism Advisory Council Coordinators “identified AUSAs involved in terrorism and national
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security matters” and used various search terms to search their email files, relying upon the “knowledge and experience” of the Coordinators as to “how best to implement the searches.” Id. ¶¶ 17-22.
The Court finds 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 describe efforts which the Court finds 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 is GRANTED. The ACLU’s cross-motion on this issue is DENIED.
b. Applicability of Exemption 5 to Withheld Documents In addition to other claims of privilege under Exemption 5, DOJ has claimed work product protection over each of the documents withheld by NSD and EOUSA. Gov’t Memo at 17. The ACLU argues that the documents are not entitled to work product protection, and that even if they are, they constitute agency working law which must be disclosed notwithstanding Exemption 5. ACLU Memo at 6-20.
i. Relationship Between the Work Product Privilege and the Working Law Doctrine
It has been clearly established for nearly forty years that documents disclosable under FOIA as agency working law may nevertheless be withheld if they are protected by the attorney work product privilege. This concept was first formulated by the Supreme Court in Sears. In Sears, the Supreme Court explained that the “reasons which did supply the basis for an agency policy actually adopted” and “expressed within the agency” constitute the “working law” of the agency and thus fall outside the protection of Exemption 5. 421 U.S. at 152-53. The Court likened such documents to those which must be affirmatively disclosed under FOIA—i.e., “final opinions,’ ‘statements of policy and interpretations which have been adopted by the agency,’ and ‘instructions to staff that
13

affect a member of the public’”—and held that such documents must be disclosed under FOIA in light of “an affirmative congressional purpose to require disclosure of documents which have the force and effect of law.” Id. at 153 (citation and internal quotation marks omitted). The Court remarked that it would “be reluctant, therefore, to construe Exemption 5 to apply to the documents described in 5 U.S.C. § 552(a)(2),” which is FOIA’s affirmative disclosure provision. The Court continued on to state, however, that “[i]t is equally clear that Congress had the attorney’s workproduct privilege specifically in mind when it adopted Exemption 5.” Id. at 154. The Court ultimately found that memoranda which had “real operative effect” and were therefore subject to FOIA’s affirmative disclosure requirements were nevertheless exempt from disclosure because they contained attorney work product. Id. at 160.
Several years later, in Merrill, the Supreme Court resolved any questions as to whether the Sears Court had held that the work product privilege could shield from disclosure documents otherwise subject to FOIA’s affirmative disclosure mandate. The Merrill Court stated that in Sears, the Supreme Court had held that “with respect to final opinions, Exemption 5 can never apply; with respect to other documents covered by 5 U.S.C. § 552(a)(2), [the Court] would be ‘reluctant to hold that the Exemption 5 privilege would ever apply.” 443 U.S. 340, 360 n.23. The Court explained, however, that “these observations were made in the course of a discussion of the privilege for predecisional communications. It should be obvious that the kind of mutually exclusive relationship between final opinions and statements of policy, on one hand, and predecisional communications, on the other, does not necessarily exist between final statements of policy and other Exemption 5 privileges” and noted that “[i]n this respect . . . Sears itself held that a memorandum subject to the affirmative disclosure requirement of § 552(a)(2) was nevertheless shielded from disclosure under Exemption 5 because it contained a privileged attorney’s work product.” Id.
While dated, the opinion of the district court in Exxon Corp. v. F.T.C., 476 F. Supp. 713
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(D.D.C. 1979), remains a helpful and concise synthesis of the relevant passages from Sears and
Merrill:
The logic of the Supreme Court’s opinion in Sears and its comment in [Merrill] indicate that information held to be attorney “work product” is to be judged quite differently with respect to the operation of § 552(a)(2) than information held to be deliberative and predecisional, although both the attorney “work product” privilege and the governmental deliberative process privilege are incorporated into the same (b)(5) exemption of FOIA. In Sears the Supreme Court held that if a document is a “final opinion” within the meaning of § 552(a)(2)(A), that document cannot qualify for the deliberative process privilege under exemption (b)(5) because final opinions and predecisional communications are mutually exclusive categories; final opinions and attorney “work product”, however, are not mutually exclusive. Thus, a document may be exempt as attorney “work product” under exemption (b)(5) notwithstanding that it is also a “final opinion”[] or has been incorporated by reference into a “final opinion,” within the meaning of § 552(a)(2)(A).
476 F. Supp. at 726.
In the years since Sears and Merrill, courts have read the Court’s statements in those cases to
stand for the proposition that the working law doctrine cannot defeat a valid claim of work product
protection. See Nat’l Assoc. of Criminal Defense Lawyers v. EOUSA, 75 F. Supp. 3d 552, 561 (D.D.C.
2014) (“[A]s long as the [document] is considered attorney work-product . . . FOIA Exemption 5
still protects the book from disclosure.”) (citing Merrill), aff’d, --- F.3d ---, 2016 WL 3902666 (D.C.
Cir. July 19, 2016); Tax Analysts v. I.R.S., 152 F. Supp. 2d 1, 29 (D.D.C. 2001) (noting that in a prior
ruling, the “Court simply followed the Supreme Court’s express direction that agency working law is
exempt under Exemption 5 attorney work product privilege” and stating that “[i]n other words,
agency working law contained in a privileged attorney work product is exempt material in and of
itself . . . .”) (citing Merrill), rev’d in part on other grounds, 294 F.3d 71 (D.C. Cir. 2002); Iglesias v. Central
Intelligence Agency, 525 F. Supp. 547, 559 (D.D.C. 1981) (“It is settled that even if a document is a
final opinion or is a recommendation which is eventually adopted as the basis for agency action, it
retains its exempt status if it falls properly within the work-product privilege.”) (citing Merrill); see also 15

1 James. T. O’Reilly, Federal Information Disclosure 1750 (Summer 2015) (“The Supreme Court’s discussion in Sears of work product in 1975 clearly signaled an intention to exempt work product ‘categorically’ under Exemption 5 of FOIA.”); Harry A. Hammitt, et al., Litigation Under the Federal Open Government Laws 165 (2010) (“Even though a document may be a final opinion, an instruction to staff, or a recommendation which has been adopted as the basis of an agency decision and subject to affirmative disclosure requirements of § 552(a)(2), it may be exempt if it falls within the workproduct privilege.”) (citing Sears, Merrill, and Exxon). Following this long line of precedent, beginning with the Supreme Court’s decision in Sears, the Court must conclude that the working law doctrine cannot overcome the work product privilege. Accordingly, even if documents constitute agency working law, they need not be disclosed under FOIA if they constitute attorney work product.
The ACLU points to the decision in New York Times Co. v. U.S. Dep’t of Justice, 138 F. Supp. 3d 462 (S.D.N.Y. 2015) in support of the notion that the working law doctrine “overcome[s] the work-product privilege.” ACLU Reply, Dkt. No. 56, at 8. This case is distinguishable because it involved the adoption exception to Exemption 5, not the working law exception. In New York Times Co., the court concluded that work product protection can be defeated by the adoption doctrine, such that a document otherwise protected as work product still must be disclosed under FOIA if “the agency has chosen to expressly adopt it or incorporate it by reference.” Id. at 472. That holding, however, does not affect this Court’s conclusion that the working law doctrine does not defeat work product protection.
The New York Times court relied on Brennan Center in likening the express adoption doctrine to the doctrine of privilege waiver. In Brennan Center, the Second Circuit found that the attorneyclient privilege under Exemption 5 was waived where an agency “referenc[ed] a document as authoritative.” 697 F.3d at 205. The court in Brennan Center explained that “it is vital to . . . a claim
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[of attorney-client privilege] that the communications between the client and attorney were made in confidence and have been maintained in confidence,” id. at 207 (quoting United States v. Mejia, 655 F.3d 126, 134 (2d Cir. 2011)), and referred to its prior holding in La Raza that “the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency’s policy,” 411 F.3d at 360. The court in Brennan Center further explained the close link between the waiver and adoption doctrines, reasoning that “[a] party’s reliance on an otherwise privileged communication to assert a claim or defense is similar to the type of express adoption or incorporation by reference that vitiates Exemption 5 protection—in either case the party cannot invoke that relied-upon authority and then shield it from public view.” 697 F.3d at 208. The New York Times court extended that reasoning to the context of the work product privilege, concluding that an agency waives work product protection otherwise available by way of Exemption 5 by “publicly adopting” a document or “justifying agency action on the basis of a document.” 138 F. Supp. 3d at 474. That decision was a logical extension of the Second Circuit’s decisions in La Raza and Brennan Center given that, similarly to the attorney-client privilege, “[t]he waiver doctrine provides that voluntary disclosure of work product to an adversary waives the privilege as to other parties.” In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993).
Here, the ACLU argues that the court’s decision in New York Times Co. should be extended to abrogate work product privilege asserted as to documents constituting agency working law. The ACLU’s argument ignores the substantive differences between the working law and adoption doctrines. Yes, the doctrines are similar, in that they are both exceptions to Exemption 5’s deliberative process privilege. However, the similarity ends there. As explained by the court of appeals in La Raza and Brennan Center, the public adoption of documents by an agency is akin to the waiver of a privilege. Documents that constitute an agency’s working law, however, unlike those adopted by the agency, are not pointed to publicly, or relied upon by the agency to assert a claim or
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defense. The working law doctrine, unlike adoption, simply does not present a cognate to the waiver of the attorney-client or work product privileges. The ACLU has not argued that DOJ expressly adopted any of the documents at issue and thereby waived any privilege applicable to them. As a result, there is no basis on which to extend the conclusions of Brennan Center, La Raza, or New York Times Co. to the working law doctrine or to this case.
ii. Applicability of the Work Product Privilege to Withheld Documents As discussed above, in order to qualify as work product, a document must be “prepared in anticipation of litigation”; that is, a document is protected as work product if “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Adlman, 134 F.3d at 1202 (emphasis in original); accord id. at 1195 (“Where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation,” it is protected as work product). “Conversely, protection will be withheld from ‘documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation.’” Schaeffler v. United States, 806 F.3d 34, 43 (2d Cir. 2015) (quoting Adlman, 134 F.3d at 1202). The Second Circuit has noted that “courts have taken a flexible approach in determining whether the work product doctrine is applicable, asking not whether litigation was a certainty, but whether the document was created ‘with an eye toward litigation.’” A. Michael’s Piano, 18 F.3d at 146 (citation omitted). The work product privilege applies in both civil and criminal cases. See United States v. Nobles, 422 U.S. 225, 236-38 (1975). In this case, the parties dispute whether documents must have been created in view of a “specific case” or “specific claim” in order for work product protection to apply. DOJ argues that “[t]here is no requirement that litigation exist at the time a protected document is created; documents may be considered work product when created with the reasonable belief of future
18

litigation” and that “invocation of the privilege does not depend on the existence of a specific case or claim.” Gov’t Memo at 17. In opposition, the ACLU argues that work product protection does not extend to “[p]olicy-level analysis of the government’s notice obligations.” ACLU Memo at 17. The ACLU argues that only documents “directed at a specific case” are eligible for work product protection. Id. at 18. Some cases in this district have appeared to impose such a requirement. See, e.g., Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 553 (S.D.N.Y. 2013) (“A party must show that there existed an identifiable specific claim or impending litigation when the materials were prepared.”) (citation omitted); Fustok v. Conticommodity Servs., Inc., 106 F.R.D. 590, 592 (S.D.N.Y. 1985) (denying work-product protection because “at the time the report was commissioned or prepared the prospect of litigation was not ‘identifiable’ because ‘specific claims [had not] already arisen.”). However, the Court does not read a “specific case” requirement in Second Circuit case law. In Schaeffler, the Second Circuit’s most recent reported decision addressing the work product doctrine, that court reaffirmed that “Adlman is the governing precedent” in that it “established a test to determine whether documents should be deemed prepared ‘in anticipation of litigation’ and therefore subject to work-product protection.” Id. As discussed above, that test asks whether “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Schaeffler, 806 F.3d at 43 (citing Adlman, 134 F.3d at 1202) (emphasis in original). And in Schaeffler, rather than asking whether a “specific claim” was contemplated, the Court applied the test articulated in Adlman and extended work product protection to a document that was “necessarily geared to . . . subsequent litigation, which on [the] record [was] highly likely.” Id. at 44 (emphasis added). As a result, the Court looks to the test articulated in Adlman and reaffirmed in Schaeffler to determine whether documents were “prepared in anticipation of litigation.” This test does not ask whether a “specific case” or “specific claim” has arisen. Rather, it asks whether “in light of the nature of the document
19

and the factual situation in the particular case, the document can fairly be said to have been prepared
or obtained because of the prospect of litigation”; in other words, it asks whether the document was
“necessarily geared” to subsequent litigation.
In this case, NSD’s affidavit states that all of the documents listed in the NSD Index, with
the exception of Doc. Nos. 7 and 101 are:
memoranda that were prepared by Government attorneys in reasonable anticipation of litigation. These materials were all prepared in anticipation of possible criminal prosecutions or other adjudications. The memoranda all address how to determine if information has been derived from FISA for use in criminal prosecutions or other adjudications and the application of FISA’s notice provisions in those proceedings, and set out the conclusions, opinions, and legal theories of their authors in anticipation of positions to be taken in [ ] criminal prosecutions or other adjudications.
Bradley Decl. ¶ 13. With respect to NSD Doc. No. 10, DOJ has submitted an affidavit which states
that this entry on the NSD Index corresponds to:
documents withheld pursuant to the attorney-work product privilege [that] were created by, or at the direction of, Department attorneys. The drafts identified by NSD as ‘Document Number 10’ are drafts of a legal memorandum which discusses how to determine if information has been derived from FISA for use in criminal prosecutions or application of FISA’s notice provision in those same proceedings. The drafts . . . discuss[] issues for prosecutors’ consideration prior to using or disclosing FISA information in the context of criminal prosecutions of those accused of committing terrorism and/or espionage related offenses . . . [The documents] include[] statements on potential issues for prosecutors’ consideration in anticipation of litigation that Department attorneys would ultimately defend on behalf of the Department.
Declaration of Vanessa Brinkmann, Dkt. No. 51, ¶¶ 16-17 (“Brinkmann Decl.”). As for documents
withheld as work product by EOUSA, DOJ’s affidavit states that each of the document is “part of a
decision-making process among various components of the Department of Justice in preparation
1 NSD Doc. No. 7 is addressed in the declaration of John Kornmeier and NSD Doc. No. 10 is addressed in the declaration of Vanessa Brinkmann. See Bradley Decl. ¶ 13, n.3.
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and anticipation of litigation involving the notice provisions of the FISA.” Kornmeier Decl. ¶ 26. As noted above, the affidavit submitted by DOJ on behalf of EOUSA also applies to NSD Doc. No. 7.
The Court finds that NSD has carried its burden of demonstrating the applicability of work product protection to the documents it has withheld, with the exception of NSD Doc. No. 7. The Vaughn submissions submitted on behalf of NSD, which are accorded a presumption of good faith, demonstrate that the documents at issue are necessarily geared to litigation in which DOJ’s notice obligations under the FAA will be at issue, and that these documents “would not have been prepared in substantially similar form but for the prospect of that litigation.” Adlman, 134 F.3d at 1195. The submissions on behalf of EOUSA, which also applies to NSD Doc. No. 7, however, do not provide the Court with sufficient information to determine whether work product protection applies. The assertion contained in the declaration of John Kornmeier is simply too conclusory to make that assessment. As explained below, the Court will grant DOJ an opportunity to enhance its submissions to provide further support for these claims of work product protection.
In reaching this conclusion with respect to NSD, the Court is also guided by the recent decision of the Court of Appeals for the D.C. Circuit in NACDL v. United States Dep’t of Justice, a FOIA case which concerned a document similar in function to the documents at issue in this case, had they been finalized and provided to prosecutors as formal guidance. See 2016 WL 3902666. In NACDL, the National Association of Criminal Defense lawyers requested an internal DOJ publication known as the Federal Criminal Discovery Bluebook, which is a “manual created by [DOJ] to guide federal prosecutors in the practice of discovery in criminal prosecutions,” and which DOJ withheld as work product under Exemption 5. 2016 WL 3902666, at *1. The Bluebook “was designed to provide advice regarding the law and practice of federal prosecutors’ discovery disclosure obligations and to serve as a litigation manual to be used by all DOJ prosecutors and
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paralegals in their cases.” Id. at *3 (citation and internal quotation marks omitted). The Blue Book, moreover, “describes the nature and scope of federal prosecutors’ discovery obligations under applicable constitutional provisions, caselaw, and the Federal Rules of Criminal Procedure,” and is an “internal manual containing litigation strategies” that gives advice to prosecutors on “the types of challenges [they] may encounter in the course of prosecutions and potential responses and approaches.” Id. (brackets omitted).
The D.C. Circuit held that the book was protected as work product, concluding that “[t]aking into account the nature, content, and function of the Bluebook as described in DOJ’s affidavits,” it could “fairly be said to have been prepared . . . because of the prospect of litigation.” Id. at *4 (citation omitted and internal quotation marks omitted). The court rejected plaintiff’s argument that work product protection was unavailable because the book “was not prepared in anticipation of litigating a specific claim or case.” Id. at *5. On this account, the court reasoned that the “Bluebook is entirely about the conduct of litigation” and is “aimed directly for use in (and will inevitably be used in) litigating cases.” Id. at *5 (emphasis in original). Thus, like the NSD documents at issue here, “the Bluebook undoubtedly was created in anticipation of—and for use in—foreseeable litigation, i.e., federal criminal prosecutions.” Id. In addition, the court rejected the argument that the Bluebook did not constitute work product because it “aims to advance a nonadversarial function—namely, education and training of prosecutors.” Id. at *6. On this point, the court agreed with the plaintiff that “materials serving no cognizable adversarial function, such as policy manuals, generally would not constitute work product,” but it concluded that the “Book does not merely pertain to the subject of litigation in the abstract. Instead it addresses how attorneys on one side of an adversarial dispute—federal prosecutors—should conduct litigation.” Id. The NSD documents at issue here are similar to the Bluebook in this regard as well—rather than constituting “policy-level documents” as the ACLU argues, ACLU Memo at 17, DOJ’s affidavits make clear that
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the documents concern “positions to be taken in [ ] criminal prosecutions or other adjudications” and “potential issues for prosecutors’ consideration in anticipation of litigation that Department attorneys would ultimately defend on behalf of the Department.” Bradley Decl. ¶ 13; Brinkmann Decl. ¶¶ 16-17.
The decision in NACDL is also significant in demonstrating the strength of the work product privilege as it applies to guidance documents designed for use by federal prosecutors. As is evident from the NACDL court’s opinion, the Bluebook is a final, concrete document binding on “all DOJ prosecutors and paralegals,” 2016 WL 3902666, at *3, and was still found to constitute protected attorney work product. Here, by contrast, DOJ’s affidavits attest that the documents withheld by NSD, with the exception of NSD Doc. Nos. 35, 36, and 37, are non-final draft documents which were discovered through a search for non-governing records. See generally Bradley Decl. ¶ 4 (“By order of this Court, NSD FOIA conducted another search for materials that were non-governing.”); Brinkmann Decl. ¶¶ 9, 14 (NSD Doc. No. 10 “consists of multiple drafts of an unsigned, non-final Department [of Justice] legal memorandum” and these drafts “reflect proposed policy on the use of FISA information that was never finalized”). The work product privilege is certainly no less applicable to the non-governing NSD documents at issue in this case than it was applicable to the final manual made available to prosecutors nationwide, as was at issue in NACDL.
iii. Segregability FOIA mandates that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 552 U.S.C. §552(b). “This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.” F.B.I. v. Abramson, 456 U.S. 615, 626 (1982); accord Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“Before approving the application of a FOIA exemption, the district court must make specific
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findings of segregability regarding the documents to be withheld.”). “Any part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under exemption 5.” Tax Analysts v. I.R.S., 117 F.3d 607, 620 (D.C. Cir. 1997) (internal quotation marks omitted); see also Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 371 (E.D.N.Y. 2009) (“With respect to the work product doctrine, because the protection applies to both factual and opinion-related material, no segregability issues arise.”). In NACDL, however, the D.C. Circuit observed that “[i]n cases involving voluminous or lengthy work-product records . . . it [is] generally preferable for courts to make at least a preliminary assessment of the feasibility of segregating nonexempt material.” 2016 WL 3902666, at *7. With respect to NSD Doc. No. 10, DOJ has attested that it “carefully reviewed each page to determine whether any non-exempt information could be segregated for release” and that “no segregable, nonexempt information could be disclosed to plaintiff.” Brinkmann Decl. ¶ 19. As for the bulk of the NSD documents (i.e., those addressed in the Bradley Declaration) however, DOJ’s affidavit is silent with respect to segregability. DOJ instead relies on the argument that “where a document is withheld pursuant to the work-product doctrine, there simply are no reasonably segregable portions that FOIA requires to be released.” Gov’t Memo at 22. The Court finds that summary judgment in DOJ’s favor on the issue of segregability is appropriate with respect to NSD Doc. No. 10, but the Court will require DOJ to conduct a segregability analysis with respect to the remaining documents withheld by NSD which the Court has found to be within the scope of Exemption 5. Cf. Ferrigno v. U.S. Dep’t of Homeland Sec., No. 09-cv-5878 (RJS), 2011 WL 1345168, at *11 (S.D.N.Y. Mar. 29, 2011) (finding FOIA exemption applicable and granting summary judgment for government “on all issues except segregability”).
As explained below, the Court will also grant DOJ an opportunity to substantiate its claims of work product privilege over the documents withheld by EOUSA and NSD Doc. No. 7, and is
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not yet in a position to reach the question of segregability with respect to any documents properly withheld by EOUSA.
iv. Revised Vaughn Submissions “[A] district court should not undertake in camera review of withheld documents as a substitute for requiring an agency’s explanation of its claimed exemptions in accordance with Vaughn.” Spirko v. U.S. Postal Service, 147 F.3d 992, 997 (D.C. Cir. 1998). Rather, “[t]he district court should first offer the agency the opportunity to demonstrate, through detailed affidavits and oral testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt portions.” Id. (citation and internal quotation marks omitted). “If the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency’s claims of exemption, the district court then has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.” Id. DOJ’s affidavit submitted in connection with its withholding of documents by EOUSA and NSD Doc. No. 7 indicates that DOJ is asserting the deliberative process privilege and the attorney work product privilege over these documents. See Kornmeier Decl. ¶ 25. The Court finds it appropriate, at this juncture, to provide DOJ with the opportunity to provide further substantiation of its work product claims with respect to these documents. Cf. Electronic Frontier Foundation v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 174-75 (D.D.C. 2011) (“Having found the DOJ’s Vaughn submissions inadequate, the Court has several options regarding how to proceed in this case . . . [T]he Court finds that the best approach is to direct the agency to revise their Vaughn submissions, taking into account the deficiencies identified by the Court.”). The Court will defer ruling on the applicability of the deliberative process privilege to these documents in order to allow DOJ the opportunity to provide additional support for its work product claims. The Court will, of course, rule on the applicability of the deliberative process privilege in the event that DOJ is ultimately unsuccessful in
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carrying its burden of demonstrating the applicability of the work product privilege that it has asserted. The ACLU is free to renew its arguments that these documents are not protected by the work product or deliberative process privileges, in accordance with the schedule set forth below.
Accordingly, DOJ’s motion for summary judgment as to the applicability of Exemption 5 to the withheld documents is GRANTED as to documents withheld by NSD, with the exception of NSD Doc. No. 7, on all issues except segregability, and DENIED WITHOUT PREJUDICE as to documents withheld by EOUSA and NSD Doc. No. 7. The Court underscores that no ruling is being made on the applicability of the deliberative process privilege to the EOUSA documents and NSD Doc. No. 7.
V. CONCLUSION For the reasons stated above, DOJ’s motion for summary judgment is GRANTED IN
PART and DENIED IN PART without prejudice. The ACLU’s cross-motion is GRANTED insofar as it challenges the adequacy of DOJ’s Vaughn submissions on behalf of EOUSA and with respect to NSD Doc. No. 7, and is otherwise DENIED. The denial of the ACLU’s motion is without prejudice to the extent that the motion challenges the withholding of documents by EOUSA and NSD Doc. No. 7. DOJ is directed to submit revised Vaughn submissions addressing the documents withheld by EOUSA and NSD Doc. No. 7 and a segregability analysis addressing the NSD documents the Court has found to be within the scope of Exemption 5, along with a renewed motion for partial summary judgment no later than November 14, 2016. The ACLU may file a renewed cross-motion for summary judgment with respect to the documents withheld by EOUSA
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and NSD Doc. No. 7 no later than 30 days from the date of service of DOJ’s renewed motion.

The Clerk of Court is directed to terminate the motions pending at Dkt. Nos. 47 and 52.

SO ORDERED.

Dated: September 27, 2016 New York, New York

__________________________________ GREGORY H. WOODS United States District Judge



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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------X

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: 5/2/17

:

:

AMERICAN CIVIL LIBERTIES UNION, et :

ano,

:

: Plaintiffs, :

1:13-cv-7347-GHW

:

MEMORANDUM OPINION

-against-

:

AND ORDER

:

UNITED STATES DEPARTMENT OF

:

JUSTICE,

:

Defendant. :

: ------------------------------------------------------------ X

GREGORY H. WOODS, United States District Judge: This 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. I. INTRODUCTION
This 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

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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).
Although 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 intraagency 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).
At 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.
In the 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.
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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.
On 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. II. LEGAL FRAMEWORK
In the 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.
A. Summary Judgment Standard A 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
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under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To 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 586.
In 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 omitted).
B. FOIA and Exemption 5 “Congress 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
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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).
FOIA 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).
C. Agency Affidavits When an 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 conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden.”). Affidavits submitted by an agency “‘are accorded a presumption of good faith.’” Florez v. Cent. Intelligence Agency, 829 F.3d 178, 182 (2d Cir. 2016) (quoting Ctr. for Constitutional Rights v. C.I.A.,
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765 F.3d 161, 166 (2d Cir. 2014)). “[A]ccordingly, discovery relating to . . . the exemptions [the agency] claims for withholding records generally is unnecessary if the agency’s submissions are adequate on their face.” Long v. Office of Personnel Mgmt., 692 F.3d 185, 191 (2d Cir. 2012) (quoting Carney, 19 F.3d at 812)). “Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Wilner, 592 F.3d at 73 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks and citations omitted)). III. DISCUSSION
A. Work Product The DOJ requests summary judgment on the basis that the EOUSA documents and NSD Doc. No. 7 are protected by the attorney work product doctrine. If the documents constitute work product, they are exempt from disclosure pursuant to FOIA Exemption 5. The Court finds that the declaration submitted by the DOJ in support of this request demonstrates that the documents at issue are work product, because they were created because of anticipated criminal prosecutions (i.e., litigation) in which DOJ’s notice obligations under the FAA might be at issue. The DOJ is entitled to summary judgment on the issue of work product protection for the EOUSA documents and NSD Doc. No. 7.
1. Legal Standard The attorney work-product doctrine “provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (citation omitted). Documents “should be deemed prepared ‘in anticipation of litigation’ . . . if, in light of the nature of the document and the factual
6

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situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (emphasis in original) (citation omitted). In adopting this formulation of the privilege, the Second Circuit expressly rejected a more limited formulation, which would protect only those documents prepared “primarily or exclusively to assist in litigation.” Id. at 1198.
“Where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation,” it is protected as work product. Id. at 1195. “Conversely, protection will be withheld from ‘documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation.’” Schaeffler v. United States, 806 F.3d 34, 43 (2d Cir. 2015) (quoting Adlman, 134 F.3d at 1202). The Second Circuit has noted that “courts have taken a flexible approach in determining whether the work product doctrine is applicable, asking not whether litigation was a certainty, but whether the document was created ‘with an eye toward litigation.’” A. Michael’s Piano, 18 F.3d at 146 (citation omitted). The work product doctrine applies in both civil and criminal cases. See United States v. Nobles, 422 U.S. 225, 236-38 (1975); accord United States v. Weisberg, No. 08cr-347 (NGG) (RML), 2011 WL 1327689, at *4 (E.D.N.Y. Apr. 5, 2011).
2. Application In connection with the prior round of summary judgment motions, the DOJ submitted a declaration attesting that all of the documents the NSD had withheld, with the exception of Doc Nos. 7 and 10, are:
memoranda that were prepared by Government attorneys in reasonable anticipation of litigation. These materials were all prepared in anticipation of possible criminal prosecutions or other adjudications. The memoranda all address how to determine if information has been derived from FISA for use in criminal prosecutions or other adjudications and the application of FISA’s notice provisions in those proceedings, and set out the conclusions, opinions, and legal theories of their authors in anticipation of
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positions to be taken in [ ] criminal prosecutions or other adjudications.
Declaration of Mark A. Bradley (Dkt. No. 49) ¶ 13. A separate declaration submitted by the DOJ
provided the following characterization of NSD Doc. No. 10:
documents withheld pursuant to the attorney-work product privilege [that] were created by, or at the direction of, Department attorneys. The drafts identified by NSD as ‘Document Number 10’ are drafts of a legal memorandum which discusses how to determine if information has been derived from FISA for use in criminal prosecutions or application of FISA’s notice provision in those same proceedings. The drafts . . . discuss[] issues for prosecutors’ consideration prior to using or disclosing FISA information in the context of criminal prosecutions of those accused of committing terrorism and/or espionage related offenses . . . [The documents] include[] statements on potential issues for prosecutors’ consideration in anticipation of litigation that Department attorneys would ultimately defend on behalf of the Department.
Declaration of Vanessa Brinkmann (Dkt. No. 51) ¶¶ 16-17. As for the documents withheld by the
EOUSA and NSD Doc. No. 7, the DOJ’s declaration stated only that each of the documents is
“part of a decision-making process among various components of the Department of Justice in
preparation and anticipation of litigation involving the notice provisions of the FISA.” Declaration
of John Kornmeier (Dkt. No. 50) ¶ 26.
In the 2016 Opinion, the Court concluded that the DOJ had carried its burden of
demonstrating the applicability of work product protection to the documents the NSD had
withheld, with the exception of NSD Doc. No. 7. The DOJ’s submissions established that “the
documents at issue are necessarily geared to litigation in which DOJ’s notice obligations under the
FAA will be at issue, and that these documents ‘would not have been prepared in substantially
similar form but for the prospect of that litigation.’” 2016 Opinion at 21 (quoting Adlman, 134 F.3d
at 1195). The Court’s conclusion was guided by a recent decision by the Court of Appeals for the
D.C. Circuit, in which that court concluded that the Federal Criminal Discovery Bluebook, “a
document similar in function to the documents at issue in this case, had they been finalized and 8

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provided to prosecutors as formal guidance,” id., was protected as work product because it was “entirely about the conduct of litigation,” “aimed directly for use in (and will inevitably be used in) litigating cases” and “undoubtedly was created in anticipation of—and for use in—foreseeable litigation, i.e. federal criminal prosecutions.” Nat’l Ass’n of Criminal Def. Lawyers v. U.S. Dep’t of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246, 254 (D.C. Cir. 2016) (emphasis in original) (“NACDL”).1
As for the EOUSA documents and NSD Doc. No. 7, however, the Court concluded that the DOJ’s submissions did “not provide the Court with sufficient information to determine whether work product protection applies” because the assertion in Mr. Kornmeier’s declaration was “simply too conclusory to make that assessment.” 2016 Opinion at 21. The Court granted the DOJ an opportunity to enhance its submissions to provide further support for that claim of work product protection. The Court deferred ruling on the applicability of the deliberative process privilege to the EOUSA documents and NSD Doc. No. 7, and stated that a ruling on the basis of the deliberative process privilege would be made in the event that DOJ was unsuccessful in demonstrating the applicability of the work product protection it had asserted. Id. at 25-26.
The DOJ has renewed its motion for summary judgment on the issue of work product protection for the EOUSA documents and NSD Doc. No. 7. In support of its renewed motion, the DOJ has submitted another declaration from John W. Kornmeier, an Attorney Advisor with the EOUSA. Mr. Kornmeier’s declaration states:
The documents which EOUSA has withheld under the attorney work product privilege were prepared by government attorneys in reasonable anticipation of litigation. The documents are memoranda and emails that address issues involving the notice provisions of the FISA, and the legal issues that arise in litigation involving those notice provisions. These documents discuss the legal requirements for notice to “aggrieved persons”: under what circumstances does the FISA require notice, whether evidence is derived from surveillance, what factors prosecutors must consider in making their decisions, and other explicit legal issues which might arise in litigation. The documents analyze the FISA
1 Because the Court concluded that the documents were protected work product, it did not evaluate whether the documents—many of which were described as non-final drafts—were exempted from disclosure on another basis.
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statute as well as cases interpreting it to inform prosecutors how to proceed where notice is an issue. In sum the documents contain opinions, legal analysis, and legal theories for use by prosecutors in FISA litigation and as such are attorney work product. Declaration of John W. Kornmeier (Dkt. No. 63) ¶ 5. Although the quoted language appears on its face only to apply to the EOUSA documents, Mr. Kornmeier attests elsewhere in his declaration that the statements there apply to NSD Doc. No. 7 as well. Id. at ¶ 4. The DOJ argues that Mr. Kornmeier’s declaration “now provide[s] the same level of detail regarding the records as NSD did in the previous submissions.” Memorandum of Law in Support of the Government’s Renewed Motion for Summary Judgment (Dkt. No. 65) at 2. As a result, “for the same reasons the Court held NSD ‘carried its burden of demonstrating the applicability of work product protection to the documents it has withheld’ . . . EOUSA has carried the same burden now,” and summary judgment should be granted to the DOJ finding the EOUSA documents and NSD Doc. No. 7 are entitled to work product protection. Id. (quoting 2016 Opinion at 21). The DOJ’s entitlement to work product protection with respect to the EOUSA documents and NSD Doc. No. 7 can be resolved by simple comparison to the declarations the Court found sufficient to establish work product protection in the 2016 Opinion. Mr. Kornmeier’s new declaration, which is afforded a presumption of good faith, provides the same level of detail the Court previously found sufficient for the NSD to carry its burden of demonstrating the applicability of work product protection. Like the declarations found sufficient to establish work product protection in the 2016 Opinion, Mr. Kornmeier’s declaration demonstrates that the EOUSA documents and NSD Doc. No. 7 were prepared in anticipation of litigation in which DOJ’s notice obligations under the FAA will potentially be at issue, and that the documents “would not have been prepared in substantially similar form but for the prospect of that litigation.” Adlman, 134 F.3d at
10

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1195; see 2016 Opinion at 21.2 The statements in Mr. Kornmeier’s declaration regarding the applicability of work product protection are also more robust than those contained in the Declaration of Mark A. Bradley, which was submitted in connection with the first round of summary judgment motions in this case in 2015. See Declaration of Mark A. Bradley (Dkt. No. 19) ¶ 20.
The ACLU takes the position that work product protection is not available because “[s]traightforward legal analysis of the government’s statutory obligations—untethered from any particular case—is not sufficiently tied to impending litigation or to the adversarial process to justify the protections of the work-product privilege here.” ACLU Mem. at 6; accord id. at 7 (Mr. Kornmeier’s declaration “does not identify any particular cases, actual or impending, for which the documents were created”). The ACLU also maintains that the “working law” doctrine overcomes work product protection. Id. at 14. The ACLU’s arguments were previously rejected by the Court in the 2016 Opinion. See 2016 Opinion at 19; 16. The Court has reviewed the ACLU’s arguments for reconsideration and will not revisit its analysis here. The conclusions in the 2016 Opinion constitute the law of the case which the ACLU cannot now rely upon to defeat the DOJ’s latest motion for summary judgment inasmuch as “a decision on an issue of law made at one stage of a case becomes binding precedent to be followed in subsequent stages of the same litigation.” In re PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991); accord Brentwood Pain & Rehab. Servs., P.C. v. Allstate Ins.
2 The ACLU maintains that the Court’s conclusion on this point in the 2016 Opinion “misunderstands how the underlying criminal prosecutions unfold.” Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Renewed Motion for Summary Judgment (Dkt. No. 66) (“ACLU Mem.”) at 10, n. 3. The Court is aware that this litigation was provoked by a concern that the DOJ did (and might) not provide notice of the use of FISA-derived materials. Therefore, the Court understands the ACLU to be arguing that the issue of notice itself must be actually litigated for work product protection to attach to documents prepared by lawyers to analyze that issue. The Court cannot accept that argument. That the documents were prepared in anticipation of criminal prosecutions (i.e., litigation) is sufficient. Work product protection covers analyses of possible legal issues that may arise in a litigation even if those specific issues are not ultimately joined in the anticipated litigation. See, e.g., Assadi v. U.S. Citizenship and Immigration Servs., No. 12-cv-1374 (RLE), 2015 WL 1500254, at *9 (S.D.N.Y. Mar. 31, 2015) (holding that work product protection applied to attorney’s “summary of the potential issues in the contemplated lawsuit”).
11

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Co., 508 F. Supp. 2d 278, 288 (S.D.N.Y. 2007) (same). B. Segregability
The DOJ also requests summary judgment on the issue of segregability with respect to the approximately 80 documents the EOUSA and NSD have withheld (i.e., all of the documents responsive to the ACLU’s request). Because the DOJ’s declaration on this point demonstrates that the documents do not contain non-exempt material that is reasonably segregable, the DOJ’s motion on this issue is also granted.
1. Legal Standard FOIA mandates that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 552 U.S.C. § 552(b). “This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.” F.B.I. v. Abramson, 456 U.S. 615, 626 (1982); accord Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“Before approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.”). “Any part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under exemption 5.” Tax Analysts v. I.R.S., 117 F.3d 607, 620 (D.C. Cir. 1997) (internal quotation marks omitted); see also Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 371 (E.D.N.Y. 2009) (“With respect to the work product doctrine, because the protection applies to both factual and opinion-related material, no segregability issues arise.”). In NACDL, however, the D.C. Circuit observed that “[i]n cases involving voluminous or lengthy work-product records,” such as the 500 plus page document at issue there, “it [is] generally preferable for courts to make at least a preliminary assessment of the feasibility of segregating nonexempt material.” 844 F.3d at 256-57.
12

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The D.C. Circuit further remarked that “[m]aterial is more likely to be segregable in longer documents with logically divisible sections.” Id. at 257 (citation and internal quotation marks omitted). But that court did note that the segregability analysis it ordered the district court to conduct on remand “does not call for parsing” the document at issue “line-by-line” or “segregating material dispersed throughout the document,” but “[i]nstead, the emphasis is on segregation of nonexempt material found in logically divisible sections.” Id. (citations and internal quotation marks omitted).
Non-exempt information is not reasonably segregable when it is “inextricably intertwined” with the exempt information in a document “such that disclosure would compromise the confidentiality of [exempt] information that is entitled to protection.” Hopkins v. U.S. Dep’t of Housing and Urban Dev., 929 F.2d 81, 86 (2d Cir. 1991) (citation and internal quotation marks omitted); accord Inner City Press/Community on the Move v. Bd. of Gov. of Fed. Reserve Sys., 463 F.3d 239, 249 n. 10 (2d Cir. 2006) (“[I]nformation that is ‘inextricably intertwined’ with exempt information cannot be disclosed . . . .”) ; ACLU v. F.B.I., No. 11-cv-7562 (WHP), 2015 WL 1566775, at *3 (S.D.N.Y. Mar. 31, 2015) (“[A]ny portions of a document that fall outside of FOIA’s exemptions must be disclosed unless they are ‘inextricably intertwined’ with the exempt material.”). Moreover, courts have held that disclosure is not required when, after segregation, all that is left is “a few nuggets of non-intertwined” information. Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70, 88 (2d Cir. 1979); accord Sussman v. U.S. Dep’t of Justice, No. 03-cv-3618 (DRH) (ETB), 2006 WL 2850608, at *17 (E.D.N.Y. Sept. 30, 2006) (agency need not disclose “edited document with little informational value”); Elec. Privacy Info. Ctr. v. Office of the Dir. of Nat. Intelligence, 982 F. Supp. 2d 21, 31-32 (D.D.C. 2013) (“token release” of non-exempt information with “little informational value” not necessary under FOIA).
13

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2. Application In the 2016 Opinion, the Court granted summary judgment to the DOJ on the issue of
segregability with respect to NSD Doc. No. 10 only. The Court required the DOJ to conduct a
segregability analysis with respect to the remaining documents withheld by the NSD that the Court
had found to be within the scope of Exemption 5. And the Court deferred ruling on the question of
segregability with respect to the documents withheld by the EOUSA and NSD Doc. No. 7.
In support of its latest summary judgment motion, the DOJ has provided sworn declarations
on the issue of segregability from Mr. Kornmeier and from Susan L. Kim, an Attorney Advisor in
the FOIA and Declassification Unit of the Office of Law and Policy at the NSD. These
declarations provide a sufficient basis on which to grant summary judgment to the DOJ, on the
ground that the documents at issue are not comprised of logically divisible sections which lend
themselves to the reasonable segregability of exempt from non-exempt materials.
Mr. Kornmeier’s declaration, which covers the EOUSA documents and NSD Doc. No. 7,
states that:
These documents are not large manuals divided into logically divisible sections that are amenable to the reasonable segregation of non-exempt information. These documents range from 1 to 38 pages. EOUSA examined each page of each document to determine if there was any non-exempt information it could reasonably segregate. The documents contain no reasonably segregable nonexempt information that can be released without potentially compromising privileged information. Any non-privileged material in the documents, to the extent it exists, is so inextricably intertwined with the privileged material that the release of any non-exempt information would produce no meaningful information responsive to the ACLU request. Kornmeier Decl. ¶ 6. Ms. Kim’s declaration, which pertains to the NSD documents that the Court
previously concluded were properly withheld under FOIA Exemption 5, see 2016 Opinion at 21,
similarly provides:
I carefully examined each page of [the withheld NSD documents]. First, none of these . . . documents is voluminous; the number of pages for each of these documents ranges from one to thirty-eight. Second, while some of these
14

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documents are divided into subparts to help organize the drafters’ thoughts and assist the readers, none of them have the same logically divisible sections which discuss separate and distinct components of the law as is the case with the Federal Criminal Discovery Blue Book, the manual at issue in National Association of Criminal Defense Lawyers v. United States, 829 F.3d 741 (D.C. Cir. 2016). Finally, these records contain no reasonably segregable, non-exempt information that can be released without potentially compromising privileged information. Any arguably non-privileged material in the relevant portions of these thirty documents is so inextricably intertwined with the privileged material that, if the documents were redacted, the remaining non-exempt information would consist of block quotations from the FISA or other information of minimal or no information value. Accordingly, the release of such documents would produce no meaningful information responsive to the ACLU request. Declaration of Susan L. Kim (Dkt. No. 64) ¶ 5. Mr. Kornmeier and Ms. Kim’s declarations, which as noted are accorded a presumption of good faith, attest that the documents withheld from the ACLU (aside from NSD Doc. No. 10, discussed above) contain no reasonably segregable non-exemption information. According to these declarations, the documents are not long and easily divided into logically divisible sections like those at issue in NACDL but rather, are between one and thirty eight pages and contain exempt material that is inextricably intertwined with any non-exempt material. Based upon these declarations, the Court concludes that the DOJ has sufficiently demonstrated that the records do not contain reasonably segregable non-exempt material. Moreover, the ACLU has not provided any basis to defeat the presumption of good faith to which these declarations are entitled. The DOJ is entitled to summary judgment on the issue of segregability as to all documents it has withheld under FOIA Exemption 5 in response to the ACLU’s request. IV. CONCLUSION For the reasons stated above, the DOJ’s motion for summary judgment (Dkt. No. 62) is GRANTED.
15

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The Clerk of Court is directed to terminate all pending motions and to close this case.

SO ORDERED.

Dated: May 2, 2017 New York, New York

__________________________________ GREGORY H. WOODS United States District Judge 

16

 
 Case: 1:13-cv-7347 As of: 04/06/2018 05:26 PM EDT 1 of 8
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:13−cv−07347−GHW

CLOSED,ECF

American Civil Liberties Union et al v. United States Department of Justice Assigned to: Judge Gregory H. Woods Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/17/2013 Date Terminated: 05/03/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union

represented by Alexander Abraham Abdo American Civil Liberties Union, Women's Rights Proj 125 Broad Street New York, NY 10004 (212) 549−2500 x2517 Fax: (2120 549−2654 Email: alex.abdo@knightcolumbia.org TERMINATED: 01/17/2017

Brett Max Kaufman American Civil Liberties Union 125 Broad Street New York, NY 10004 (212)−549−2603 Fax: (212)−549−2654 Email: bkaufman@aclu.org ATTORNEY TO BE NOTICED

Jameel Jaffer American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−7814 Fax: (212) 549−2629 Email: jameel.jaffer@knightcolumbia.org TERMINATED: 09/01/2016 ATTORNEY TO BE NOTICED

Patrick Christopher Toomey American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7816 Fax: (212) 549−2654 Email: ptoomey@aclu.org ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Foundation

represented by Alexander Abraham Abdo (See above for address) TERMINATED: 01/17/2017

Brett Max Kaufman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-7347 As of: 04/06/2018 05:26 PM EDT 2 of 8

Jameel Jaffer (See above for address) TERMINATED: 09/01/2016 ATTORNEY TO BE NOTICED
Patrick Christopher Toomey (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice

represented by Benjamin Henry Torrance U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212−637−2703 Fax: 212−637−2702 Email: benjamin.torrance@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/17/2013 10/17/2013 10/17/2013 10/17/2013 10/23/2013 10/24/2013
10/24/2013
10/24/2013
12/02/2013 01/02/2014

# Docket Text
1 COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 465401079194)Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(msa) (Entered: 10/22/2013)
SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (msa) (Entered: 10/22/2013)
Case Designated ECF. (msa) (Entered: 10/22/2013)
Magistrate Judge Andrew J. Peck is so designated. (msa) (Entered: 10/22/2013)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 10/23/2013)
3 AFFIDAVIT OF SERVICE of Summons served on United States Department of Justice on 10/24/2013. Service was made by MAIL. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 10/24/2013)
4 AFFIDAVIT OF SERVICE of Summons served on Eric H. Holder, Attorney General of the United States on 10/24/2013. Service was made by MAIL. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 10/24/2013)
5 AFFIDAVIT OF SERVICE of Summons served on United States Attorney for the Southern District of New York on 10/24/2013. Service was made by MAIL. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 10/24/2013)
6 ANSWER to 1 Complaint. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 12/02/2013)
7 PRETRIAL ORDER: The above entitled action has been assigned to Judge Robert W. Sweet for all purposes. Counsel are directed to meet and discuss settlement, pretrial discovery and all preliminary matters. If this action has been settled or otherwise terminated, counsel are directed to file or mail a stipulation of discontinuance, voluntary dismissal, or other proof of termination of the action prior to the date of the pretrial conference with Tsz Chan, Courtroom Clerk to Judge Sweet, Room 18C, U.S.

Case: 1:13-cv-7347 As of: 04/06/2018 05:26 PM EDT 3 of 8

01/14/2014 01/16/2014 04/04/2014 04/04/2014
04/30/2014 05/02/2014 05/05/2014 05/05/2014
05/05/2014 05/12/2014 05/12/2014
06/11/2014 06/13/2014

Courthouse, 500 Pearl Street, New York, New York 10007; otherwise counsel are directed to appear in courtroom 18C on 1/15/2014 for a pretrial conference for the reason set forth herein. Plaintiff(s)' counsel ARE REQUIRED TO NOTIFY COUNSEL FOR ALL PARTIES OF THIS CONFERENCE. (See Order). (Pretrial Conference set for 1/15/2014 at 04:00 PM in Courtroom 18C, 500 Pearl Street, New York, NY 10007 before Judge Robert W. Sweet.) (Signed by Judge Robert W. Sweet on 1/2/2014) (ja) (Entered: 01/02/2014)
8 JOINT LETTER MOTION to Adjourn Conference scheduled for Jan. 15, 2014, addressed to Judge Robert W. Sweet from Benjamin H. Torrance dated January 14, 2014. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 01/14/2014)
9 ORDER granting 8 Letter Motion to Adjourn Conference. So ordered. (Signed by Judge Robert W. Sweet on 1/14/2014) (ja) (Entered: 01/16/2014)
NOTICE OF CASE REASSIGNMENT to Judge Gregory H. Woods. Judge Robert W. Sweet is no longer assigned to the case. (pgu) (Entered: 04/04/2014)
10 ORDER: The parties are hereby ORDERED to submit a joint letter to the Court updating the Court on the status of the case by April 30, 2014. The letter should address the status of the stipulation referenced in the parties' joint application to the Court of January 14, 2014. (Signed by Judge Gregory H. Woods on 4/4/2014) (djc) (Entered: 04/04/2014)
11 JOINT LETTER addressed to Judge Gregory H. Woods from Patrick C. Toomey dated April 30, 2014 re: Case Status, Conference, and Schedule. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 04/30/2014)
Minute Entry. The Court has scheduled a Telephone Conference for 5/5/2014 at 09:30 AM. (Daniels, Anthony) (Entered: 05/02/2014)
Minute Entry for proceedings held before Judge Gregory H. Woods: Telephone Conference held on 5/5/2014. (Court Reporter Bill Richards) (Daniels, Anthony) (Entered: 05/05/2014)
12 MEMO ENDORSEMENT on re: 11 Letter filed by American Civil Liberties Union, American Civil Liberties Union Foundation. ENDORSEMENT: As discussed on the telephone conference of May 5, 2014, the parties shall jointly notify the Court by May 12, 2014 regarding the status of the EOUSA's processing of the request. Briefing on the NSD issue shall proceed by the schedule proposed by the parties. SO ORDERED. (Signed by Judge Gregory H. Woods on 5/5/2014) (djc) (Entered: 05/05/2014)
Set/Reset Deadlines: ( Cross Motions due by 7/18/2014. Motions due by 6/20/2014. Responses due by 8/15/2014, Replies due by 8/29/2014.) (djc) (Entered: 05/07/2014)
13 LETTER addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated May 12, 2014 re: update on deadline for production. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 05/12/2014)
14 MEMO ENDORSEMENT on re: 13 Letter filed by United States Department of Justice. As discussed at a status conference on May 5, 2014, the Court has directed counsel for the parties to confer regarding plaintiffs' request for documents from the United States Attorney's Offices in the District of Colorado and the District of Oregon. The government agrees that the search, processing, and production of those documents is to be completed by May 30, 2014. ENDORSEMENT: The May 30, 2014 deadline for the production of documents is SO ORDERED. (Signed by Judge Gregory H. Woods on 5/12/2014) (ama) (Entered: 05/12/2014)
15 LETTER MOTION for Extension of Time addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated June 11, 2014. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 06/11/2014)
16 ORDER granting 15 Letter Motion for Extension of Time. Application granted. The government's motion for summary judgment is due July 25, 2014; the ACLU's cross motion and opposition is due August 22, 2014; the government's opposition and reply is due September 5, 2014; and the ACLU's reply is due September 19, 2014.

Case: 1:13-cv-7347 As of: 04/06/2018 05:26 PM EDT 4 of 8

07/25/2014 07/25/2014 07/25/2014 07/25/2014 07/25/2014 07/25/2014 08/22/2014 08/22/2014 08/22/2014 09/05/2014 09/05/2014 09/05/2014 09/19/2014 09/19/2014 10/08/2014

(HEREBY ORDERED by Judge Gregory H. Woods)(Text Only Order) (Woods, Gregory) (Entered: 06/13/2014)
17 MOTION for Partial Summary Judgment . Document filed by United States Department of Justice. Responses due by 8/22/2014(Torrance, Benjamin) (Entered: 07/25/2014)
18 MEMORANDUM OF LAW in Support re: 17 MOTION for Partial Summary Judgment . . Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 07/25/2014)
19 DECLARATION of Mark A. Bradley in Support re: 17 MOTION for Partial Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit index of documents)(Torrance, Benjamin) (Entered: 07/25/2014)
20 DECLARATION of Benjamin H. Torrance in Support re: 17 MOTION for Partial Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit Mohamud Discovery Memo, # 2 Exhibit OIP Letter)(Torrance, Benjamin) (Entered: 07/25/2014)
21 DECLARATION of Zeyen J. Wu in Support re: 17 MOTION for Partial Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 07/25/2014)
22 DECLARATION of Charles F. Gorder, Jr. in Support re: 17 MOTION for Partial Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 07/25/2014)
23 MOTION for Partial Summary Judgment . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 08/22/2014)
24 MEMORANDUM OF LAW in Support re: 23 MOTION for Partial Summary Judgment . and in Opposition to Defendant's Motion for Partial Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 08/22/2014)
25 DECLARATION of Patrick Toomey in Support re: 23 MOTION for Partial Summary Judgment .. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit A−G, # 2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J)(Toomey, Patrick) (Entered: 08/22/2014)
26 MEMORANDUM OF LAW in Opposition re: 17 MOTION for Partial Summary Judgment ., 23 MOTION for Partial Summary Judgment . Reply Mem. in support of government's motion. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 09/05/2014)
27 DECLARATION of Mark A. Bradley in Opposition re: 17 MOTION for Partial Summary Judgment ., 23 MOTION for Partial Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 09/05/2014)
28 DECLARATION of John B. Wiegmann in Opposition re: 17 MOTION for Partial Summary Judgment ., 23 MOTION for Partial Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 09/05/2014)
29 REPLY MEMORANDUM OF LAW in Support re: 23 MOTION for Partial Summary Judgment . . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 09/19/2014)
30 DECLARATION of Patrick Toomey in Support re: 23 MOTION for Partial Summary Judgment .. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit A)(Toomey, Patrick) (Entered: 09/19/2014)
31 LETTER addressed to Judge Gregory H. Woods from Patrick Toomey dated October 8, 2014 re: Supplemental Authorities. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 10/08/2014)

Case: 1:13-cv-7347 As of: 04/06/2018 05:26 PM EDT 5 of 8

10/16/2014 12/23/2014 12/29/2014 02/05/2015 03/03/2015
03/03/2015 03/05/2015 03/05/2015
03/05/2015
03/05/2015

32 LETTER addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated October 16, 2014 re: response to supplemental authorities. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 10/16/2014)
33 LETTER addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated December 23, 2014 re: supplemental authority. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 12/23/2014)
34 LETTER addressed to Judge Gregory H. Woods from Patrick Toomey dated December 29, 2014 re: Response to supplemental authority. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 12/29/2014)
Minute Entry for proceedings held before Judge Gregory H. Woods: Telephone Conference held on 2/5/2015. (Court Reporter Khris Sellin) (Daniels, Anthony) (Entered: 02/05/2015)
35 MEMORANDUM OPINION AND ORDER re: 17 MOTION for Partial Summary Judgment, filed by United States Department of Justice, 23 MOTION for Partial Summary Judgment, filed by American Civil Liberties Union, American Civil Liberties Union Foundation. The ACLU's motion for summary judgment based on the scope of DOJ's search is GRANTED IN PART as described above. The Court orders DOJ to conduct a new search for the documents requested in Part 3, without limiting that search to "governing" documents, and to release any responsive records that do not fall under a FOIA exemption. To the extent that the ACLU's motion challenges other aspects of DOJ's search, it is DENIED IN PART. The government's motion for summary judgment based on the applicability of Exemption 5 to the documents listed in the government's Vaughn index is GRANTED. The ACLU's cross−motion on that issue is DENIED. The Clerk of Court is directed to terminate the motions pending at docket numbers 17 and 23 and to close this case. (Signed by Judge Gregory H. Woods on 3/3/2015) (kko) (Entered: 03/03/2015)
Transmission to Judgments and Orders Clerk. Transmitted re: 35 MEMORANDUM OPINION AND ORDER, to the Judgments and Orders Clerk. (kko) (Entered: 03/03/2015)
36 LETTER addressed to Judge Gregory H. Woods from Patrick Toomey dated March 5, 2015 re: Case Closing. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 03/05/2015)
37 CLERK'S JUDGMENT: That for the reasons stated in the Court's Memorandum Opinion and Order dated March 3, 2015, the ACLU's motion for summary judgment based on the scope of DOJ's search is granted in part as described in that Order; the Court orders DOJ to conduct a new search for the documents requested in Part 3, without limiting that search to governing documents, and to release any responsive records that do nor fall under a FOIA exemption; to the extent that the ACLU's motion challenge other aspects of DOJ's search, it is denied in part; the government's motion for summary judgment based on the applicability of Exemption 5 to the documents listed in the government's Vaughn index is granted; the ACLU's cross−motion on that issue is denied; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 3/5/2015) (Attachments: # 1 Notice of Right to Appeal, # 2 Notice of Right to Appeal)(dt) (Entered: 03/05/2015)
38 ORDER: As discussed during a telephone conference on March 5, 2015, this case will be reopened to enable the parties to litigate an outstanding issue: the search for records in U.S. Attorney's Offices other than those previously searched. The Court will hold a status conference on Thursday, April 2, 2015 at 3:00 p.m. The parties are ordered to confer regarding the government's compliance with the Court's March 3, 2015 order and the search of additional U.S. Attorney's Offices and to submit a joint status letter no later than March 26, 2015. The Clerk of Court is ordered to restore this case to the Court's active calendar. (Status Conference set for 4/2/2015 at 03:00 PM before Judge Gregory H. Woods.) (Signed by Judge Gregory H. Woods on 3/5/2015) (kko) (Entered: 03/05/2015)
Minute Entry for proceedings held before Judge Gregory H. Woods: Telephone Conference held on 3/5/2015. (Court Reporter Khris Sellin) (Daniels, Anthony) (Entered: 03/16/2015)

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03/20/2015 04/02/2015 04/03/2015
04/16/2015 04/17/2015
08/27/2015 08/27/2015 09/16/2015 09/21/2015 09/22/2015
11/23/2015 11/23/2015

39 JOINT LETTER addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated March 20, 2015 re: Joint Status Report. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 03/20/2015)
Minute Entry for proceedings held before Judge Gregory H. Woods: Status Conference held on 4/2/2015. (Court Reporter Alena Lynch) (Daniels, Anthony) (Entered: 04/02/2015)
40 ORDER: As discussed during an April 2, 2015 conference, the parties are ordered to submit to the Court a joint letter regarding the status of this case no later than April 16, 2015. If the parties are unable to negotiate and agree upon a stipulation regarding the ongoing searches before that time, the parties shall include in the letter a set of firm dates by which the government can produce the documents requested by the ACLU, and, if necessary, the parties shall propose a briefing schedule to resolve any disputes regarding the scope of the request. (Signed by Judge Gregory H. Woods on 4/3/2015) (kko) (Entered: 04/03/2015)
41 LETTER addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated April 16, 2015 re: status report. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 04/16/2015)
42 MEMO ENDORSEMENT on re: 41 Letter re: status report filed by United States Department of Justice. ENDORSEMENT: The government is ordered to produce to the ACLU all responsive documents it intends to disclose, if any, as well as a Vaughn index for any withheld documents, no later than August 21, 2015. The parties shall submit a joint letter no later than August 28, 2015, confirming that the searches and production are complete and notifying the Court as to whether any motions are anticipated or if the case should be closed at that time. If production is complete or an agreement is reached before August 21, 2015, the parties should notify the Court within one week of any such change in status. (Signed by Judge Gregory H. Woods on 4/17/2015) (kko) (Entered: 04/17/2015)
43 LETTER MOTION for Extension of Time and status report regarding search and production of documents addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated August 27, 2015. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 08/27/2015)
44 ORDER granting 43 Letter Motion for Extension of Time. Application granted. The deadline for the parties' joint letter is extended to September 16, 2015. The Clerk of Court is directed to terminate the motion pending at Docket Number 43. (Signed by Judge Gregory H. Woods on 8/27/2015) (mro) (Entered: 08/27/2015)
45 LETTER addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated Sept. 16, 2015 re: schedule for upcoming cross−motions. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 09/16/2015)
Minute Entry for proceedings held before Judge Gregory H. Woods: Telephone Conference held on 9/21/2015. (Court Reporter Paula Speer) (Daniels, Anthony) (Entered: 09/21/2015)
46 ORDER: As discussed during a telephone conference on September 22, 2015, the ACLU's deadline to identify to the government the documents whose withholding it is challenging is October 2, 2015. The government's deadline to file a motion for summary judgment is November 23, 2015; the ACLU's opposition and cross−motion for summary judgment is due no later than December 22, 2015; the government's reply in support of its motion and opposition to the ACLU's cross−motion is due no later than January 15, 2016; and the ACLU's reply in support of its cross−motion is due no later than January 29, 2016. (Cross Motions due by 12/22/2015. Motions due by 11/23/2015. Responses due by 1/15/2016, Replies due by 1/29/2016.) (Signed by Judge Gregory H. Woods on 9/22/2015) (kko) (Entered: 09/22/2015)
47 MOTION for Summary Judgment . Document filed by United States Department of Justice. Responses due by 12/22/2015(Torrance, Benjamin) (Entered: 11/23/2015)
48 MEMORANDUM OF LAW in Support re: 47 MOTION for Summary Judgment . . Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 11/23/2015)

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49 DECLARATION of Mark A. Bradley in Support re: 47 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Attachments: # 1 Index of documents)(Torrance, Benjamin) (Entered: 11/23/2015)
50 DECLARATION of John Kornmeier in Support re: 47 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 11/23/2015)
51 DECLARATION of Vanessa R. Brinkmann in Support re: 47 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 11/23/2015)
52 MOTION for Summary Judgment . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 12/22/2015)
53 MEMORANDUM OF LAW in Support re: 52 MOTION for Summary Judgment . and in Opposition to Defendant's Motion for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/22/2015)
54 DECLARATION of Patrick Toomey in Support re: 52 MOTION for Summary Judgment .. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit A−K)(Toomey, Patrick) (Entered: 12/22/2015)
55 REPLY MEMORANDUM OF LAW in Support re: 47 MOTION for Summary Judgment . and in opposition to plaintiff's mot. for s.j. 52 . Document filed by United States Department of Justice. (Attachments: # 1 Smith Decl.)(Torrance, Benjamin) (Entered: 01/15/2016)
56 REPLY MEMORANDUM OF LAW in Support re: 52 MOTION for Summary Judgment . . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 01/29/2016)
57 LETTER addressed to Judge Gregory H. Woods from Patrick Toomey dated March 11, 2016 re: Cross−motions for summary judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 03/11/2016)
58 LETTER addressed to Judge Gregory H. Woods from Benjamin H. Torrance dated March 16, 2016 re: Cross−motions for summary judgment. Document filed by United States Department of Justice.(Torrance, Benjamin) (Entered: 03/16/2016)
59 MOTION for Jameel Jaffer to Withdraw as Attorney . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Jaffer, Jameel) (Entered: 08/31/2016)
60 ORDER granting 59 Motion to Withdraw as Attorney. Mr. Jameel Jaffer is granted leave to withdraw as counsel for plaintiff. The Clerk of Court is instructed to remove Mr. Jaffer from the list of counsel in this case. (HEREBY ORDERED by Judge Gregory H. Woods)(Text Only Order) (Woods, Gregory) (Entered: 09/01/2016)
61 MEMORANDUM OPINION AND ORDER re: 52 MOTION for Summary Judgment filed by American Civil Liberties Union, American Civil Liberties Union Foundation, 47 MOTION for Summary Judgment filed by United States Department of Justice. For the reasons stated above, DOJ's motion for summary judgment is GRANTED IN PART and DENIED IN PART without prejudice. The ACLU's cross−motion is GRANTED insofar as it challenges the adequacy of DOJ's Vaughn submissions on behalf of EOUSA and with respect to NSD Doc. No. 7, and is otherwise DENIED. The denial of the ACLU's motion is without prejudice to the extent that the motion challenges the withholding of documents by EOUSA and NSD Doc. No. 7. DOJ is directed to submit revised Vaughn submissions addressing the documents withheld by EOUSA and NSD Doc. No. 7 and a segregability analysis addressing the NSD documents the Court has found to be within the scope of Exemption 5, along with a renewed motion for partial summary judgment no later than November 14, 2016. The ACLU may file a renewed cross−motion for summary judgment with respect to the documents withheld by EOUSA and NSD Doc. No. 7 no later than 30 days from the

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date of service of DOJ's renewed motion. The Clerk of Court is directed to terminate the motions pending at Dkt. Nos. 47 and 52. (As further set forth in this Order.) (Motions due by 11/14/2016.) (Signed by Judge Gregory H. Woods on 9/27/2016) (kko) (Entered: 09/27/2016)
62 MOTION for Summary Judgment . Document filed by United States Department of Justice. Responses due by 12/14/2016(Torrance, Benjamin) (Entered: 11/14/2016)
63 DECLARATION of John W. Kornmeier in Support re: 62 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 11/14/2016)
64 DECLARATION of Susan L. Kim in Support re: 62 MOTION for Summary Judgment .. Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 11/14/2016)
65 MEMORANDUM OF LAW in Support re: 62 MOTION for Summary Judgment . . Document filed by United States Department of Justice. (Torrance, Benjamin) (Entered: 11/14/2016)
66 MEMORANDUM OF LAW in Opposition re: 62 MOTION for Summary Judgment . . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/14/2016)
67 MOTION for Alexander Abdo to Withdraw as Attorney . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 01/13/2017)
68 MEMO ENDORSEMENT on MOTION OF ALEX ABDO TO WITHDRAW AS COUNSEL. ENDORSEMENT: Mr. Alex Abdo is granted leave to withdraw as counsel for plaintiff. The Clerk of Court is instructed to remove Mr. Abdo from the list of counsel in this case. The Clerk of Court is further directed to terminate the motion pending at Dkt. No. 67. So ordered. Granting 67 Motion to Withdraw as Attorney. Attorney Alexander Abraham Abdo terminated. (Signed by Judge Gregory H. Woods on 1/17/2017) (rjm) (Entered: 01/17/2017)
69 MEMORANDUM OPINION AND ORDER re: 62 MOTION for Summary Judgment filed by United States Department of Justice. For the reasons stated above, the DOJ's motion for summary judgment (Dkt. No. 62) is GRANTED. The Clerk of Court is directed to terminate all pending motions and to close this case. SO ORDERED. (Signed by Judge Gregory H. Woods on 5/2/2017) (anc) (Entered: 05/02/2017)
Transmission to Judgments and Orders Clerk. Transmitted re: 69 Memorandum & Opinion to the Judgments and Orders Clerk. (anc) (Entered: 05/02/2017)
70 CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memorandum Opinion and Order dated May 2, 2017, the DOJ's motion for summary judgment is granted; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 5/3/2017) (Attachments: # 1 Right to Appeal, # 2 Right to Appeal)(km) (Entered: 05/03/2017)