Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 1 of 11

0 UNITED STATES DISTRIC

RT

% SOUTHERN DISTRICT OF NEW

AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New Yorl&, NY 10004,

AMERICAN CIVII. LIBERTIES UNION

FOUNDATION

125 Broad Street

Ncw York, NY 10004,

No.

Plaintiffs,

FFDFRAL BUREAU OF INVESTIC'ATlON, 170 Marcel Drive Winchester, VA 22602
UNITED STATES DEPARTMENT Ol JUSTICE, 1425 New York Avenue, N. W. Washington, D.C. 20530
Dcfcndants.

COlVIPI. AINT FOR INJUNCTIVE RKI, IKF 1. Thiiss i's 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 records improperly withheld by Del'endants Federal Bureau of Investigation ("FBI")and the

United States Department of Justice ("DOJ") in response to a request properly made by Plaintiffs

American

Civil Liberties IJnion and American

C'vi i'1L'ib ert'ies

'
U nion

F oundation

(collectively

"ACI, U").

2.

Although Plaintiffs submitted their request four months ago, Defendants have

failedtoreleasetherequestedrecords.

Norhavetheypyr proces.s.e dth e Request ei'thher "promptly"

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 2 of 11

(as required by FOIA for all requests, id. ) 552(a)(3)(A)(ii)) or in an "expedited" fashion (as

required by FOIA for cerlain requests, id. ( 552(a)(6)). 3. On May 31, 2011, Plaintiffs submitted a FOIA request ("the Request" ) to the FBI
and the DOJ's Offic of Information Policy ("OIP"), OIIice of Public Alfairs ("OPA"), Office of

Legal Counsel ("OI,C"), and National Security Division ("NSD") pertaining to thc government's
interpretation or use of the powers enumerated in the USA PATRIOT Act ("PATRIOT Act"),

Pub. L. No. 107-56; 115 Stat. 272 (2001). Specifically, the Request pertains to the FBI's use and

interpretation of Section 215 of the IISA PATRIOT Act, as amended, which permits the
government to apply for court orders requiring the production ol' "tangible things. '"

4. Plaintiffs sought expedited processing of the Request. The NSD granted that

request by letter dated Junc 1, 2011; thc I'BI, OIP, and OLC did the same by letters daied June 8,

2011, June 9, 2011, and June 15, 2011, respectively.

5.

Plaintifls also sought a waiver or limitation of search, review, and duplication

fees. The NSD granted that request by letter dated June I, 2011; the FBI denied that request by letter dated July 6, 2011.

6. Four months have elapsed since the ACLU liled the Request. In a letter dated

August 22, 2011, the NSD released three items and communicated a determination to withhold

other responsive items and records. Del'endant FBI has not released any responsive records.

7. Defendants' failure to process and release responsive records is of particular

concern because the records relate to a highly controversial surveillance authority the wisdom,

effectiveness, and scope of which are a matter of intense and ongoing public debate. The records sought would greatly contribute to thc public's understanding of the FBI's use of Section 215

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 3 of 11

and to the processes that the government has put in place to ensure that that usc complies with

the Constitution.

8.

Plaintifls seek an injunction requiring Defendants to process the Request

immediately. Plaintiffs also seek an order enjoining the Defendants from assessing fees for the

processing of the Request.

Jurisdiction and Venue

9. This Court has both subject matter jurisdiction of the FOIA claim and personal

jurisdiction over the parties pursuant to 5 U.S.C, II 552(a)(4)(B), (a)(6)(F)(iii). This Court also
has jurisdiction over this action pursuant to 2g U.S.C. ) 1331 and 5 U. S.C. $$ 701-706. Venue

lies in this district under 5 U.S.C. tI 552(a)(4)(B).

10. Because Defendants have failed to determine an administrative appeal in the time

set by FOIA, Plaintiffs are deemed to have exhausted all administrative remedies and are now
entitled to appeal directly to the Court to enforce the dictates of FOlA pursuant to 5 U. S.C. II

552(a)(4)(B).

Parties

11. Plaintiff American Civil Liberties Union is a nationwide, non-profit, nonpartisan organization with more than 500,000 members dedicated to the constitutional principles of
liberty and equality. Thc 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. Thc 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.

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 4 of 11
12. Plaintiff American Civil Liberties Union Foundation is a separate IJ 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. 13. Defendant FBI is a component of the DOJ. It is headquartered in Washington,
D.C. and has field offices throughout thc country, including in New York, NY. 14. Defendant DOJ is a Department of the Executive Branch of the U. S. government
and an agency within the meaning of 5 U. S.C. 1[ 552(f)(l). Thc DOJ is headquartered in Washington, D.C.
Factual Background 15. Section 215 of the Patriot Acl, allows the FBI to obtain "any tangible things (including books, records, papers, documents and other items) for an investigation to protect
" against international terrorism or clandestine intelligence activities,
16. Since the enactment of the PATRIOT Act in 2001, Section 215 has received
considerable and sustained media and public attention In rcccnt months, as Congress has
debated rcauthorization of ceitain PATRIOT Act provisions, including Section 215, media and
public attention have intensified.
17. As sct forth in the Request, many recent news stories have included allegations by
members of the Senate Select Committee on Intelligence that the DOJ has adopted an overly broad construction of Section 215.
18. While the DOJ claimed only to have used Section 215 powers 21 times in 2009 and 96 times in 2010, Senators Ron Wyden and Mark Ildall, along with others, recently proffered an amenrhnent to address the government's "secret[] reinterpretation [of/ public laws
" and statutes in a manner that is inconsistent with the public's understanding of these laws. They

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 5 of 11

made clear that they had specific concerns regarding the government's interpretation of Section

215.

19. Further, Senator Wydcn stated in open Congress that hc "certainly believe[s] the

public virill bc surprised again when they learn about some of the interpretations of'the PATRIOT
" Act, suggesting that the FBI's numbers or public statements have bccn misleading or

incomplete.

20. In May 2009, Senators Wyden and Udall also offered an amendment that would

have limited thc government's ability to use Section 215 to collect records about people. This

effort to amend was also unsuccessful.

21. Section 215 was renewed as part of the PATRIOT Act without amendment, and

the concerns regarding its interpretation have not bccn resolved.

~POIA R

t

22. On May 31, 2011, Plaintiffs submitted their Request for the release of any and all

records concerning the govenunent's interpretation or use of Section 215, including but not

limited to:

"legal opinions or memoranda interpreting that provision; guidelines informing
government personnel how that provision can be used; records containing statistics
about the use or misuse of thc provision; reporls provided by the executive branch
to Congress relating to the executive's interpretation, use or misuse of the provision; forms used by executive agencies in connection with the use of Section
215; and legal papers filed by the government or any other party in the 1'oreign
" Intelligence surveillance Court, and opinions of that court, pertaining to the
interpretation, use or proposed use of Section 215.

23. With respect to the requested records, the Rcqucst sought only those records drafted, finalized or issued after March 9, 2006. It made clear that it 'do[es] not ask you to

disclose the names or identities of those entities or individuals who have been served with

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 6 of 11
Section 215 orders or the names or identities of those individuals or entities about whom records
" have been sought.
24. The Request also "ask[ed] that you disclose any and all records indicating the
kinds or types of information that may, as a matter of policy or law, be obtained through the use
of Section 215."
25. Plaintiffs sought expedited processing ol' the Request on the grounds that there is a "compelling need" for these records because "fite records sought are urgently nccded by an
organization primarily engaged in disseminating information in order to inform the public about
" actual or alleged federal government activity, and "relate to a 'matter of widespread and
cxccptional media interest in which there exist possible questions about thc government's
" integrity which affect public confidence. See 5 U.S.C. lI 552(a)(6)(E); see also 28 C.F.R. 11
16.5(d). 26. Plaintiffs sought a waiver of search, review, and reproduction fees on thc grounds
that disclosure of the requested records is "likely to contribute significantly to public understanding of the operations or activities of thc government and is not primarily in the
" commercial interest of the requester. See 5 U. S.C. ) 552(a)(4)(A)(iii); see also 28 C.F.R. ss
] 6.11.(kXI). 27. Plaintiffs also sought a waiver of search, review and duplication fees on the
grounds that the ACI, U 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); see also 28 C.F.R. $ 16.11.
28. The Request was submitted to the designated FOIA o11ice of the FIII as well as
the DOJ's OIP, OPA, OI, C, and NSD.

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 7 of 11
The Government's Res onse to the Re ucst
29. In spite of thc urgent national interest surrounding the requested records, the
government has neither released all responsive records nor explained its failure to do so.
30. By letter dated Junc I, 2011, the NSD acknowledged receipt of thc Request and
advised that it had granted Plaintiffs' applications 1'or a fee waiver and for expedited processing, concluding, "[y]ou have demonstrated that there is a particular urgency to inform the public
" about an actual or alleged federal goverrunent activity.
31. By letter dated .Iune 8, 2011, the FBI advised that it had approved Plaintiffs'
request lor expedited processing.
32. By letter dated June 9, 2011, the OIP acknov:ledged receipt of the Request and advised that it had granted Plaintiffs' request for expedited processing pursuant to the DOJ's
standard involving "a matter of widespread and exceptional media interest in which there exist
" possible questions about the government's integrity which affect public confidcncc. The letter
also advised that a decision had not been made as to Plaintiffs' request for a fee waiver.
33. By letter dated June 15, 2011, the OI, C acknowledged receipt of thc Request and
advised that it had granted Plaintiffs' request for expedited processing pursuant to the DOJ's
standard involving "a matter of widespread and exceptional media interest in which there exist
" possible questions about the government's integrity which affect public conlidcncc. The letter
also advised that a decision had not been made as to Plaintil'fs' request for a fee waiver. I'urther,
thc letter stated that OI, C's staff had not yet been able to complete a search to determine whether there were records within the scope of the Request, and v'ould accordingly bc unable to comply
with the statutory deadline for responding to the Request

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 8 of 11

34. By letter dated June 22, 2011, the OIP advised that a search had been conducted in the Office of Legal Policy and no records responsive to thc Request had been located. It also

advised that the OIP was continuing to search records in other DOJ oflices.
35. By letter dated July 6, 2011, the FBI advised that it had denied Plaintiffs'

application for a fee waiver.

36. By letter dated August 22, 2011, the NSD advised that it had located records
responsive to thc Request, and that it was releasing thrcc items in full. The letter advised that the NSD had determined to withhold an item described as "Emails; 12/06/2009 through 3/12/2010; 8
full pages, 4 partial pages (partial outside scope, partial referred to OIP)" pursuant to FOIA exemptions set forth in 5 U. S.C. 552(b). In addition, the letter stated, "we have identified other

responsive records from NSD/OI operational case liles created to secure surveillance authorities

from the Foreign Intelligence Surveillance Court. All such records are categorically denied
under 5 U.S.C. 552(b)(1) which permits the withholding of information properly classified
" pursuant to Executive Order No. 13326. Finally, the letter advised that the NSD had referred

certain DOJ leadership ol'fice records to the OIP, for review and direct response.

37. By letter dated August 31, 2011, the OIP advised that it had received material

from the NSD for processing and direct response.

i~tt Pl i tif'f ' Ad

A

38. By letter dated August 19, 2011, Plaintil'fs submitted to OIP their appeal from the FBI's denial of Plaintiffs' request for a public-interest fee waiver of thc Request. OIP

adjudicates such appeals.

39. OIP advised Plaintiffs that it had received their administrative appeal dated

August 19, 2011 on August 22, 2011.

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 9 of 11

40. More than twenty days have passed since Plaintiffs submitted their administrative

appeal dated August 19, 2011 to OIP. Plaintiffs have reccivcd no further response to this appeal. 41. By letter dated September 22, 2011, Plaintiffs submitted to OIP their appeal from
thc NSD's decision to withhold certain items and records that are responsive to the Request. OIP

adjudicates such appeals.

42. OIP advised Plaintiffs that it had received their administrative appeal dated September 22, 2011 on September 23, 2011.

43. More than twenty days have passed since Plaintiffs submitted their administrative

appeal dated September 22, 2011 to OIP. Plaintiffs have received no further response to this

appeal.
44.

As a result, Plaintiffs are deemed to have exhausted their administrative remedies.

Causes of Action

45. Plaintiffs repeat, rcallege, and incorporate thc allegations in the I'oregoing

paragraphs as though fully set forth herein.
46. Defendants are an agency and a component thereof subject to FOIA, 5 U. S.C. )
552(f), and must therefore release in response to a FOIA request any disclosable records in their
possession at the time of thc request and provide a lawful reason for withholding any materials as to which they claim an exemption, under 5 U. S.C. sS 552(a)(3).
47. Defendants have failed to make a reasonable effort to search for records sought by the Request, and that failure violates FOIA, 5 U.S.C. $ 552(a)(3), and Defendants' corresponding

regulations.

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 10 of 11
48. Defendants have failed to promptly make available the records sought by the Request, and that failure violates FOIA, 5 U. S.C. fJ 552(a)(6)(A), and Defendants' corresponding
regulations.
49. Dcfcndants have failed to process Plaintiffs' Rcqucst as soon as practicable, and
that failure violates FOIA, 5 U. S.C. ) 552(a)(6)(E), and Del'endants' corresponding regulations.
50. Defendants have failed to grant Plaintiffs' request for a waiver of search, review, and duplication fees, and that failure violates FOIA, 5 U.S.C. $ 552(a)(4), (a)(6), and
Defendants' corresponding regulations.
51. Defendants have failed to grant Plaintiffs' request for a limitation of fees, and that failure violates FOIA, 5 U.S.C. Jj 552(a)(4), (a)(6), and Defendants' corresponding regulations.
52. Dcfcndants' decision to withhold certain responsive items and records is
improper.
53. Even if parts of those records are properly withheld as classified, Defendants have an obligation to release segregable portions of otherwise exempt material.
54. Dcfcndants' failure to provide all responsive records and material violates FOIA, generally and specifically 5 U. S.C. $ 552(a)(3).
Requested Relief WHEREFORE, Plaintiffs respectfully request that this Court: A. Order Defendants to immeihately process and provide all records responsive to the
Request;
B. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for Lhe processing of the Request;
C. Award Plaintiffs their costs and reasonable attorneys* fees incurred in this action; and
10

Case 1:11-cv-07562-WHP Document 1 Filed 10/26/11 Page 11 of 11

D. Grant such other relief as the Court may deem just and proper.
Respectfully submitted,

Dated: October 26, 2011

Charles S. Sims (CS-0624) Richard I. Haddad (RH-7270)
Proskauer Rose LLP 11 Times Square New York, NY 10036 Phone: (212) 969-3000 Fax: (212) 969-2900 csims@proskauer. corn
rhaddad@proskauer. corn
Alexander Abdo (AA-0527) Jameel Jaffer (JJ-4653) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2517
Fax:(212) 549-2654
aabdo@aclu. org jjaffer@aciu. org
Beth Haroules (BH-5797) Arthur 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 bhsroulesnyclu, erg
aeisenberg@nyclu. org
Counsel for the Jtlaintiffs

11

 
 Case 1:11-cv-07562-WHP Document 31
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

Filed 05/17/12 Page 1 of 14
USDC SDNY DOCUMENT ELECTRONI CALLY FILED DOC # :~~~.__.~.~_._----,_ __ DATE FILED:

THE NEW YORK TIMES CO., et ano.,

11 Civ. 6990 (WHP)

Plaintiffs,

MEMORANDUM & ORDER

-against-

UNITED STATES DEPARTMENT OF mSTICE,

Defendant.
-------------------------------X
AMERICAN CNIL LIBERTIES UNION, et ano.,

11 Civ. 7562 (WHP)

Plaintiffs,

-against-

FEDERAL BUREAU OF INVESTIGATION, et ano.,

Defendants.

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

WILLIAM H. PAULEY III, District Judge:

Plaintiffs The New York Times Company and Charlie Savage (together, the "New

York Times") and the American Civil Liberties Union and the American Civil Liberties Union

Foundation (together, the "ACLU") bring these actions against the United States Department of

Justice (the "DOJ") and the Federal Bureau of Investigation (the "FBI," collectively, the

"Government") under the Freedom ofInforrnation Act ("FOIA"), 5 U.S.C. § 552. The New

York Times and the ACLU seek the public disclosure of a classified report to Congress from the

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Attorney General and the Director of National Intelligence (the "Report") regarding foreign intelligence collection authorized by section 215 of the USA PATRIOT Act (the "Patriot Act"). The parties move for summary judgment in 11 Civ. 6990 (the "New York Times action") and partial summary judgment in 11 Civ. 7562 (the "ACLU action"). For the following reasons, Plaintiffs' motions are denied, and the Government's motions are granted.
BACKGROUND 1. Patriot Act Section 215
Section 215 ofthe Patriot Act authorizes the Government to apply to the Foreign Intelligence Surveillance Court for an order directing the production of "any tangible things" for certain investigations. 50 U.S.c. § 1861(a)(1). The Government contends that its use of this authority is critical to countering national security threats. It represents that public disclosure of the Report would expose sensitive intelligence sources and methods to America's adversaries and therefore harm national security.
In response, the New York Times and the ACLU note that two United States Senators-Senator Ron Wyden of Oregon and Senator Mark Udall of Colorado-stated publicly that the Executive Branch misled Congress and the American public about its broad interpretation of section 215. See 157 Congo Rec. S3386 (daily ed. May 26,2011) (statement of Sen. Wyden) ("[M]any Members of Congress have no idea how the law is being secretly interpreted by the executive branch[.]"); see also 157 Congo Rec. S3389 (daily ed. May 26,2011) (statement of Sen. Udall) ("[W]hat most people-including many Members of Congress­ believe the PATRIOT Act allows the government to do ... and what government officials
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privately believe the PATRIOT Act allows them to do are two different things."). According to the New York Times and the ACLU, the Senators' comments suggest that the Government is withholding the Report in bad faith.
II. The New York Times Request On May 27,2011, New York Times reporter Charlie Savage ("Savage")
submitted a FOIA request to the DOJ's Office ofInformation Policy ("OIP") sr.eking the Report. (Declaration ofNabiha Syed, dated Mar. 19,2012 ("Syed Decl."), Ex. B.) On June 22, 2011, Savage forwarded the request to the DOl's National Security Division ("NSD"). (Syed Decl. ~ 4 and Ex. B.) On August 2,2011, NSD denied Savage's request. (Syed Decl. ~ 9 and Ex. D.) On August 19,2011, the New York Times appealed the denial to OIP. (Syed Decl. ~ 11 and Ex. E.) On October 5, 2011-after the deadline for an administrative determination on the appeal passed-the New York Times commenced this litigation. (Syed Decl. ~ 17.)
By letter dated September 30, 201 I-but received by the New York Times after the commencement of this litigation-OIP informed the New York Times that the Report was properly withheld, but the DOJ Department Review Committee would determine whether it should remain classified. (Syed Decl. ~ 19 and Ex. I.) According to the Government, such referrals to the Review Committee occur as a matter of course. (Letter from Emily Daughtry to the Court, dated May 8,2012) (11 Civ. 6990, ECF No. 25.)
III. THE ACLU REQUEST On May 31, 2011, the ACLU filed a FOIA request with the FBI and the DOl's
OIP, Office of Public Affairs, Office of Legal Counsel, and NSD seeking "all records concerning the government's interpretation or use of Section 215." (Unclassified Declaration of Mark A.
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Bradley, dated Feb. 27, 2012 ("Unclassified Bradley Decl."), , 7.) On August 22, 2011, NSD released three documents in response to the request and stated that it would withhold other documents, including the Report sought by the New York Times. (Complaint, dated Oct. 26, 2011 ("ACLU Compl."), ~ 6.) After filing and losing two administrative appeals, the ACLU filed this suit on October 26,2011. (ACLU Compl. ~~ 38-44.) The ACLU's other FOIA requests are not before the Court on these motions.
DISCUSSION 1. Legal Standard
Summary judgment should be rendered if the record shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has made an initial showing that there is no genuine dispute of material fact, the non-moving party cannot rely on the "mere existence of a scintilla of evidence" to defeat summary judgment but must set forth "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original); see also Niagara Mohawk Power Corp. v. Jones Chern., Inc., 315 F.3d 171, 175 (2d Cir.2003).
"A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v.
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Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial. '" Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita, 475 U.S. at 586-87). The Court resolves all factual ambiguities and draws all inferences in favor of the non-moving party. Liberty Lobby, 477 U.S. at 255; see also Jeffreys v. City of New York, 426 F.3d 549,553 (2d Cir. 2005). Where, as here, both parties move 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).
In a FOIA case, "[a]ffidavits and declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption [from the cbligation to disclose] are sufficient to sustain the agency's burden." Carney v. U.S. Dep't of Justice, 19 F.3d 807,812 (2d Cir. 1994) (footnote omitted). "[T]he general rule in this Circuit is that in FOIA actions, agency affidavits alone will support a grant of summary judgment," and Local Civil Rule 56.1 statements are not required. Ferguson v. FBI, No. 89 Civ. 5071 (RPP), 1995 WL ·329307, at *2 (S.D.N.Y. June 1, 1995), aff'd, 83 F.3d 41 (2d Cir. 1996).
II. FOIA FOIA represents Congress's balance "between the right of the public to know and
the need of the Government to keep information in confidence." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting H.R. Rep. 89-1497, 89th Cong., 2d Sess. 6 (1966» (internal quotation marks omitted). Thus, while FOIA requires public disclosure of many government documents, disclosure is not required if"the documents fall within [the statute's]
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enumerated exceptions." Dep't ofInterior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (internal citations omitted). FOIA's exemptions are "narrowly construed," and all doubts "are to be resolved in favor of disclosure." ACLU v. Dep't ofDer., 543 F.3d 59, 66 (2d Cir. 2008), vacated on other grounds and remanded, 130 S. Ct. 777 (2009).
Courts review exemption claims de novo, and it is the Government's burden "to justify the withholding of any requested documents." Associated Press v. U.S. Dep't ofDer., 554 F.3d 274, 283 (2d Cir. 2009) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991» (internal quotation marks omitted); see also 5 U.S.C. § 552(a)(4)(B). To carry its burden, the Government must submit declarations with the "reasonable specificity" needed to facilitate meaningful review. Halpern v. FBI, 181 F.3d 279,293 (2d Cir. 1999). However, declarations in FOIA cases need not contain "factual descriptions that ifmade public would compromise the secret nature of the information[.]" Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384-85 (D.C. Cir. 1979) (quoting Vaughn v. Rosen, 484 F.2d 820,826 (D.C. Cir. 1973» (internal quotation marks omitted).
"Ultimately, an agency's justification for invoking a FOIA exception is sufficient if it appears logical or plausible." Wilner v. Nat'! Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (quoting Larson v. Dep't of State, 565 F.3d 857,865 (D.C. Cir. 2009) (Sentelle, c.J.» (internal quotation marks omitted). And courts "have consistently deferred to executive affidavits predicting harm to national security[.]" Wilner, 592 F.3d at 76 (quoting Ctr. for Nat'} Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918,927 (D.C. Cir. 2003» (internal quotation marks omitted). Accordingly, "the government's burden is a light one," ACLU v. U.S. Dep't ofDer., 628 F.3d 612,624 (D.C. Cir. 2011) (Sentelle, C.J.); accord Amnesty Int'l USA v. CIA, 728 F.
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Supp. 2d 479,508 (S.D.N.Y. 2010) (deferring to executive declarations predicting harm to national security).
A. Sufficiency of the Government's Submissions In support of its motions for summary judgment and partial summary judgment,
the Government submitted classified and unclassified declarations of Mark A. Bradley, the Director ofthe FOIA and Declassification Unit ofNSD's Office of Law and Policy. (Unclassified Bradley Decl. '1[ 1.) The New York Times and the ACLU contend that the unclassified Bradley declaration lacks the required degree of specificity because it is conclusory and merely repeats the legal standard for withholding classified documents. But, as the New York Times acknowledged at oral argument, this Court need not decide whether the Government's public submissions are sufficient if this Court reviewed the Report in camera. (Hearing Transcript dated May 4,2012 ("Hr'g Tr."), at 12.) Any in camera inspection guides a court's evaluation of the Government's reliance on exemptions from FOIA's disclosure requirement.
B. In Camera Review
District courts may review withheld documents in camera to assist in analyzing FOIA exemption claims. See 5 U.S.C. § 552(a)(4)(B); see also Tigue v. U.S. Dep't of Justice, 312 F3d 70, 82 (2d Cir. 2002). "In camera review is considered the exception, not the rule, and the propriety of such review is a matter entrusted to the district court's discretion." ACLU v. Office of the Dir. ofNaCI Intelligence, No. 10 Civ. 4419 (RJS), 2011 WL 5563520, at *12 n.9 (S.D.N.Y. Nov. 15,2011) (quoting Local 3, InCI Bhd. ofElec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988» (internal quotation marks omitted). But in camera inspection is
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particularly appropriate where, as here, "the number of documents is relatively small[.]" Twist v. Ashcroft, 329 F. Supp. 2d 50, 54 (D.D.C. 2004), affd sub nom., Twist v. Gonzales, 171 F. App'x 855 (D.C. Cir. 2005).
Both the New York Times and the ACLU asked this to Court review the Report in camera, and the Government did not oppose that request. In view of the Report's brevity, this Court did so. This Court is mindful, however, that "the district court's inspection prerogative is not a substitute for the government's burden ofproofl.]" Halpern, 181 F.3d at 295 (quoting Church of Scientology v. U.S. Dep't of Army. 611 F.2d 738, 743 (9th Cir. 1980)) (internal quotation marks omitted). Accordingly, the Government must demonstrate that the Report is covered by at least one ofFOIA's enumerated exemptions. See Wilner, 592 F.3d at 73.
C. FOIA Exemption 1 The Government contends that the Report is exempt from disclosure under FOIA
Exemption 1. Exemption 1 provides that FOIA's disclosure mandate does not apply to materials that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1).
Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29,2009), provides the operative classification standard. Under this Executive Order, (1) an "original classification authority" must classify the information; (2) the information must be "owned by, produced by or for, or ... under the control of the United States Government"; (3) the information must fall within one or more of eight protected categories listed in section 1.4 of the Order; and (4) an original classification authority must "determine[] that the unauthorized disclosure of the information
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Case 1:11-cv-07562-WHP Document 31 Filed 05/17/12 Page 9 of 14
reasonably could be expected to result in damage to the national security" and be "able to identify and describe the damage." Exec. Order 13526 § L1(a)(1)-(a)(4). Section 1,4 of Executive Order 13526 protects, among other things, "intelligence activities (including covert action), intelligence sources or methods, or cryptology," and "vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security." However, Section 1.7 prohibits classification of information in order to "prevent or delay the release of information that does not require protection in the interest of national security." Exec. Order 13526 § L7(a)(4).
The New York Times and the ACLU do not dispute that the first two conditions for classification are met. Further, the Bradley declarations show that the Government "determine[d] that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security." Exec. Order 13526 § 1. 1(a)(4). F1nally, this Court's in camera review confirms that the Report falls within at least one of the eight categories listed in section 1,4. This Court agrees that the Report "contains specific descriptions of the manner and means by which the United States Government acquires tangible things for certain authorized investigations pursuant to Section 215." (Unclassified Bradley Decl. ~ 9.) And this Court credits the Government's assertion that disclosing this information could enable America's adversaries to develop means to degrade and evade the nation's foreign intelligence collection capabilities. (Unclassified Bradley DecL ~ 9.) Accordingly, FOIA Exemption 1 applies, and the Government need not disclose the Report.
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Case 1:11-cv-07562-WHP Document 31 Filed 05/17/12 Page 10 of 14
D. FOIA Exemption 3 The Government also contends that the Report is exempt from disclosure under
FOIA Exemption 3, which provides that materials "specifically exempted from disclosure" by certain statutes need not be disclosed. 5 U.S.c. § 552(b)(3). In evaluating whether Exemption 3 applies, a court should "not closely scrutinize the contents of the withheld document; instead, [it should] determine only whether there is a relevant statue and whether the document falls within that statute." Krikorian v. Dep't of State, 984 F.2d 461, 465 (D.C. Cir. 1993).
The Government argues that disclosure of the Report is barred by the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, which protects intelligence sources and methods. See 50 U.S.c. § 403-1(i). In enacting the National Security Act, Congress "simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the [responsible agency] needs to perform its statutory duties[.]" CIA v. Sims, 471 U.S. 159, 169-70 (1985).
This Court's in camera review confirms that disclosing the Report would reveal and potentially compromise intelligence sources and methods. And it is principally the duty of the Executive Branch, "not that ofthe judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the [Government's] intelligence-gathering process." Sims, 471 U.S. at 180. Accordingly, the Report is also exempt from disclosure under the National Security Act of 1947, 50 U.S.C. § 403-1(i), and FOIA Exemption 3,5 U.S.C. § 552(b)(3).
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E. "Secret Law" In addition to arguing that Exemptions 1 and 3 do not apply, the ACLU contends
that the so-called secret law doctrine mandates the disclosure of the Report. The ACLU argues that even if the Report is covered by Exemptions 1 or 3, the Government may not withhold it to the extent that it "sets forth or clarifies an agency's substantive or procedurallaw[.]" Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544,548 (2d Cir. 1978) (citation omitted); see also Jordan v. U.S. Dep't of Justice, 591 F.2d 753, 781 (D.C. Cir. 1978) (Bazelon, J., concurring) ("One ofthe principal purposes of [FOIA] is to eliminate 'secret law."'). While the New York Times joins this argument, it clarifies that the ultimate issue is whether the FOIA exemptions apply. (Hr'g Tr. at 22-23.)
To support their "secret law" theory, the New York Times and the ACLU cite no case in which a court applied the "secret law doctrine" to mandate the disclosure of classified national security information protected by Exemptions 1 or 3, and this Court has found none. Indeed, the concept of "secret law" arose in the different context of Exemption 5-which protects certain "inter-agency or intra-agency memorandums or letters," 5 U.S.C. § 552(b)(5}­ and the now-abrogated exemption known as "High 2," which shielded "'predominantly internal' materials whose disclosure would 'significantly ris[k] circumvention of agency regulations or statutes.'" Milner v. Dep't of Navy, l3l S. Ct. 1259, 1263 (2011)(quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1056-57, 1074 (D.C. Cir. 1981» (internal citation omitted); see also Afshar v. Dep't of State, 702 F.2d 1125, 1141 (D.C. Cir. 1983); Cuneo v. Schlesinger, 484 F.2d 1086, 1090-91 (D.C. Cir. 1973). Further, there is no textual basis in FOIA for a freestanding "secret law doctrine." Notwithstanding the ACLU's policy arguments, this
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Court declines the invitation to read a "secret law" exception into the FOIA exemptions without a statutory tether. See Ali v. Fed. Bureau ofPrisons, 552 U.S. 214,228 (2008) ("[Courts] must give effect to the text congress enacted[.]"); see also Milner, 131 S. Ct. at 1267 (rejecting a "text­ light approach" to interpreting FOIA). Accordingly, Plaintiffs' "secret law" argument is unavailing.
F. Evidence of Bad Faith In challenging the adequacy of the Government's submissions, the New York
Times and the ACLU contend that the statements of Senators Wyden and Udall raise the possibility that the Government's decision to withhold the Report reflects bad faith. See Wilner, 592 F.3d at 73 (explaining that evidence of bad faith can undermine agency's a3sertions that document falls within FOIA exemption). However, this Court's in camera review of the Report verifies the Government's public representations that the Report contains properly classified national security information. The Senators' concerns that the Government is misleading Congress and the public about the scope of section 215 do not compel a different conclusion because the Government meets its burden for withholding the Report under Exemptions 1 and 3.
G. Feasibility of Redactions The New York Times and the ACLU maintain that this Court should order the
Government to produce the Report in redacted form ifportions are exempt from disclosure. As they note, any portions of a document that fall outside ofFOIA's exemptions must be disclosed unless they are "inextricably intertwined" with the exempt material. Inner City Press/Cmty. on the Move v. Bd. of Governors ofthe Fed. Reserve Sys., 463 F.3d 239, 249 n.10 (2d Cir. 2006). This Court's in camera review reveals that any potentially non-exempt portions of the Report are
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inextricably intertwined with the exempt portions. Accordingly, the entire Report is exempt from disclosure under FOIA Exemptions I and 3. The disclosure of a redacted version of the Report is neither feasible nor warranted.

CONCLUSION For the foregoing reasons, the New York Times' motion for summary judgment and the ACLU's motion for partial summary judgment are denied. The Government's motions for summary judgment in the New York Times action and for partial summary judgment in the ACLU action are granted. The Clerk of the Court is directed to file this Memorandum & Order in both 11 Civ. 6990 and 11 Civ. 7562. The Clerk ofthe Court is further directed to terminate all pending motions in 11 Civ. 6990 and mark that case closed, and to terminate the motions pending at ECF Nos. 14 and 23 in 11 Civ. 7562.

Dated: May 17,2012 New York, New York

SO ORDERED:
'''J ~'Y.- {:? ~ WILLIAM H. PAULEY III U.S.DJ

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Case 1:11-cv-07562-WHP Document 31 Filed 05/17/12 Page 14 of 14
Counsel ofRecord:
David E. McCraw~ Esq. The New York Times Company 620 Eighth Avenue, 18th Floor New York, NY 10018 Counselfor the New York Times Company and Charlie Savage
Alexander A. Abdo, Esq. Jameel Jaffer, Esq. American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
Beth Haroules, Esq. Arthur Eisenberg, Esq. New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004
Charles S. Simms, Esq. Richard I. Haddad, Esq. Stuart A. Youngs, Esq. Proskauer Rose LLP 11 Times Square New York, NY 10036 Counsel for the American Civil Liberties Union and the American Civil Liberties Union Foundation
Emily E. Daughtry, Esq. John D. Clopper, Esq. U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 Counsel for Defendants
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 Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
AMERICAN CIVIL LIBERTIES UNION, et ano.,
Plaintiffs,

t:y~~C~~~;Vi

oEhE~*R~~,";;IG~IB13f':qFI;tEiD"" ·DoctrMENT

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llcv7562lb=====::;;;;;;;;;;~'~'~';;;;;;J

MEMORANDUM & ORDER

-against-

FEDERAL BUREAU OF INVESTIGATION, et ano.,

Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

WILLIAM H. PAULEY III, District Judge:

Plaintiffs American Civil Liberties Union and American Civil Libeliies Union

Foundation (together, "ACLU"), filed this Freedom ofInfonnation Act action seeking

documents relating to the Government's use of section 215 of the USA PATRIOT Act. After the

ACLU filed this case, an unprecedented national security leak led to widespread publication of

classified documents concerning section 215 and reshaped this litigation. Both parties move for

summary judgment on the documents the Government has withheld. For the following reasons,

the Government's motion is granted in part, and the ACLU's motion is denied in part. The

Government is directed to submit documents to this Court, and the remainder of the motions will

be decided following in camera inspection.

BACKGROUND

After the September 11 th attacks, Congress amended the Foreign Intelligence

Surveillance Act to expand the Government's authority to investigate potential terror threats.

Specifically, section 215 ofthe USA PATRIOT Act authorized judges ofthe Foreign

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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 2 of 18
Intelligence Surveillance Court (FISC) to order the "production of any tangible things (including books, records, papers, documents, and other items)" if certain statutory requirements are met. See Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified at 50 U.S.C. § 1861).
In May 2011, the ACLU submitted a FOIA request to four agencies within the Department of Justice-the National Security Division, the Office of Information Policy, the Office of Legal Counsel, and the FBI-seeking "records concerning the Government's interpretation or use of Section 215." CompI. ~~ 22,28. In August 2011, the Government responded to the ACLU's request, releasing three documents in full and withholding others.
In October 2011, the ACLU filed this action challenging the Government's response. The ACLU's FOIA request overlapped with a FOIA request by The New York Times that sought a report to Congress from the Attorney General and Director of National Intelligence concerning the use of section 215. See N.Y. Times Co. v. U.S. Dep't of Justice, 11 Civ. 6990 (WHP) (S.D.N.Y.). The ACLU, The New York Times, and the Government all moved for summary judgment with respect to that report. After reviewing the report in camera, this Court granted summary judgment for the Government. N.Y. Times Co. v. Dep't of Justice, 872 F. Supp. 2d 309 (S.D.N.Y. 2012).
Following that decision, the ACLU narrowed its FOIA request. Later in 2012, the Government supplemented its initial production, releasing additional documents but continuing to withhold many others. Early in 2013, the parties each moved for summary judgment with respect to the withheld documents.
The posture of this action then changed dramatically. On June 5, 2013, The Guardian published a classified FISC "Secondary Order" issued under section 215 directing
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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 3 of 18
telecommunications provider Verizon to provide the National Security Agency "on an ongoing daily basis ... all call detail records or 'telephony metadata'" for all telephone calls on its network from April 25, 2013 to July 19, 2013. See lnre Application of the FBI for an Order Requiring the Prod. Of Tangible Things From Verizon Bus., Network Servs., Inc. ex reI. MCI Commc'n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80, slip op. at 24 (F.I.S.C. Apr. 25, 2013). This document, leaked by former NSA contractor Edward Snowden, was the beginning of an "unprecedented unauthorized disclosure of TOP SECRET documents," touching "on some of the U.S. Government's most sensitive national security programs, including highly classified and on-going signals intelligence collection programs." Hudson Decl. ~ 17 (emphasis in the original). The Government acknowledged the existence of an NSA program that had been collecting bulk telephony metadata-but not call contents-under section 215 since 2006. See Administration White Paner: Bulk Collection of Telenhon T J\J!etadata Under Section 215 oftne USA PATRIOT ACT (Aug. 9,2013).1
The Government asked this Court to defer decision on the pending summary judgment motions while it assessed the impact of Snowden's leaks. Letter from AUSA John D. Clopper, June 7, 2013 (ECF No. 62). The President instructed the Director of National Intelligence to determine what information could be declassified in light of the unauthorized disclosures. Hudson Dec!. ~ 24; Executive Order 13526 § 3.1(c)-(d). Thereafter, the Government began "a large-scale, multi-agency review process" to determine what additional information could be released. Hudson Decl. ,-r 25. In the course of that review, the Government released a redacted copy of the report that was the subject of this Court's decision in New York
1 Available at http://s3.documentcloud.org/documents1750223/obama-administrations-legalrationale-for. pdf.
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Times Co., 872 F. Supp. 2d 309. See 2011 Report on the National Security Agency's Bulk Collection Programs for USA PATRIOT Act Reauthorization.2
As the declassification process unfolded, the parties withdrew their summary judgment motions. And in August 2013, this Court directed the Government to continue its review process and make rolling productions to the ACLU. ECF No. 71. Ultimately, the Government released over 1,000 pages of material.
In February 2014, the ACLU narrowed its request again to "fully withheld opinions or orders ofthe Foreign Intelligence Surveillance Court that relate to the bulk collection of any infonnation (i.e., not just telephony metadata)." Email from Patrick Toomey, Esq., Feb. 7,2014 (Ex. A to Decl. of John Clopper (ECF No. 86». The Government provided a Vaughn index containing eight entries purporting to list the documents responsive to the nan'owed request that had been withheld in full. Hudson DecL Ex. A. (ECF No. 87-1). That index essentially lists three categories of documents:
1. August 2008 FISC Opinion: One six-page FISC opinion, dated August 20, 2008. Non-identical duplicates of this document are #13A, 50, and 82A in the Government's Vaughn index.
2. October 2006 FISC Orders: Four FISC orders, each dated October 31,2006, ranging in length from 4 to 19 pages and which largely overlap with one another. These documents are #77B, 77C, 79, and 8lJ in the Government's Vaughn index.
3. Unspecified Additional FISC Orders: An unspecified number of other FISC orders issued between March 9, 2006 and June 30, 2011. These documents are collectively listed as #125 et seq. in the Government's Vaughn index.
2 Available at http://www.dni.gov/files/documents/2011_CoverLetters_Report_Collection.pdf.
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Both sides move for summary judgment with respect to these documents. In addition to its

publicly filed submissions to this Court, the Government also filed a classified ex parte

declaration in support of its motion.

DISCUSSION

1. FOIA

Congress enacted FOIA to "ensure an informed citizemy" and to "hold the

governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,

242 (1978). FOlA requires "broad disclosure of Government records." CIA v. Sims, 471 U.S.

159, 166 (1985). It strikes "a \vorkable balance bet\veen the right of the public to kno\v and the

need of the Government to keep information in confidence." John Doe Agency v. John Doe

.coIP-"

493 U.S. 146, 152 (1989).

On

req-uest,

the

Govemmentmust

disclose

any ~

document

that

does not fall within one ofFOIA's nine exemptions, See Dep't ofTnterior v, Klamath Water

Users Protective Ass'n, 532 U.S. 1, 7 (2001). "[T]hese limited exemptions do not obscure the

basic policy that disclosure, not secrecy, is the dominant objective of the Act." Klamath, 532

U.S. at 7-8 (alteration in original) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361

(1976». "[C]onsistent with the Act's goal of broad disclosure, these exemptions have been

consistently given a narrow compass." Klamath, 532 U.S. at 8 (quoting U.S. Dep't of Justice v.

Tax Analysts, 492 U.S. 136, 151 (1989»; see also FBI v. Abramson, 456 U.S. 615, 630 (1982).

Even if portions of documents are exempt from disclosure, the statute requires the

Government to disclose "[a]ny reasonably segregable portion." 5 U.S.C. § 552(b). "[N]on-

exempt portions of a document must be disclosed unless they are inextricably intertwined with

exempt portions." Sussman v. U.S. Marshals Serv., 494 F.3d 1106,1116 (D.C. Cir. 2007)

(quoting Mead Data Central, Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242,260 (D.C. Cir.

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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 6 of 18
1977). "Before approving the application of a FOrA exemption, the district court must make specific findings of segregability regarding the documents to be withheld." Sussman, 494 F.3d at 1116.
"[T]o prevail on a motion for summary judgment in a ForA case, the defendant agency has the burden of showing ... that any withheld documents fall within an exemption to FOrA." Long v. Office of Personnel Mgmt., 692 F.3d 185, 190 (2d Cir. 2012) (quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)); see also Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009). "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 [or] by evidence of agency bad faith." V-hIner, 592 F.3d at 73 (quoting Larson v. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient ifit appears logical or plausible." Wilner, 592 F.3d at 73 (quoting Larson, 565 F.3d at 865).
II. In Camera Review A district court may review documents in camera to determine whether they are
exempt under FOIA, and if so, whether any reasonably segregable portions may be released. "In camera review is considered the exception, not the rule, and the propriety of such review is a matter entrusted to the district court's discretion." Local 3, Int'l Bhd. ofElec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988). "[I]f 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
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FOIA exemptions to conceal non-exempt information." Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987).
In support of its initial summary judgment motion, before the declassification review, the Government argued the documents it withheld in full could not be released in redacted form because "the release of any non-exempt information would produce only incomplete, fragmented, unintelligible sentences and phrases that are devoid of any meaning." DecL of Mark A. Bradley ~ 14 (ECF No. 43). But the plaintiff in another FOIA litigation seeking many ofthe same documents at issue here aptly demonstrated how a FISC order previously withheld but later released could have been redacted to remove classified material while still providing meaningful information. Supplemental Dec!. of Charles E. Sims Exs. 2-A, 2-B (ECF No. 99-2). The withheld document concerned the Government's violations of an earlier FISC order. The GovernrXlel1t could have redacted it to conceal the existence of a bulk collection program, the NSA's involvement, and the type of information collected by the Government, but still reveal that the Government acted "in a manner that appears to the Court to be directly contrary" to a previous court order, that the FISC contemplated taking "action regarding persons responsible for any misrepresentations to the Court ... either through its contempt powers or by referral to appropriate investigative offices," and that "[t]he Court is exceptionally concerned about what appears to be a flagrant violation of its Order in this matter." Supplemental Sims Decl. Ex. 2-A. These are by no means "unintelligible sentences and phrases that are devoid of any meaning." Bradley Decl. ~ 14.
And in its initial summary judgment motion, the Government also defended its withholding of responsive documents by stating "the rules and procedures of the FISC restrict the Government from disclosing FISC records." Second Supplemental Decl. of Mark A. Bradley
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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 8 of 18
~ 12 (ECF No. 55); see also Gov. Br. at 19 (ECF No. 95) ("[T]he government previously withheld in full all of the responsive FISC opinions and orders so as not to contravene the FISC's own rules and procedures."). In its present summary judgment motion, the Government acknowledges the FISC's rules do not prevent it from releasing FISC orders, but asserts its prior position was held in good faith.
At first, the Government argued its "mistaken" understanding of the FISC rules was corrected in September 2013, when the FISC "clarified" that its orders were subject to FOIA requests. See In re Orders of this Court Interpreting Section 215 of the Patriot Act, No. Misc.
because the Government itself previously declassified and released a FISC order on July 31, 2013, six weeks before the September "clarifying" order. See Office ofthe Director on,Tat'l Intelligence, "D~JI Clapper Declassifies and P~eleases Telephone r"1etadata Collection Documents" (July 31,2013)4,
Then, the Government claimed it had erred and offered a new argument: it was a June 2013 FISC order, not the one in September, that "clarified" the issue. See In re Motion for Consent to Disclosure of Court Records or, in the Alternative, a Determination of the Effect of the Court's Rules on Statutory Access Rights, No. Misc. 13-01 (F.I.S.C. June 12,2013).5 But that contradicts the position the Government took in an earlier proceeding before the FISC.
Back in 2007, the ACLU moved before the FISC for release of certain court orders and pleadings. In arguing that the motion was improper, the Government asserted that
3 Available at http://www.fisc.uscourts.gov/sites/default/files/Misc%20l3-02%200rder-2.pdf. 4 Available at http://1.usa.govllud7vjq. 5 Available at http://www.fisc.uscourts.gov/sites/default/files/Misc%20l3-0 1%200pinion-l.pdf.
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"[t]he ACLU can use FOIA [] to seek access to FISC orders and Government briefs in the Executive's possession. The FOIA process ... is the proper means for the ACLU to seek records of[the FISC's] proceedings from the Executive Branch. Moreover, FOIA'sjudicial remedies must be sought only in district court, not in [the FISC]." Gov.'s Opp. Br. at 5, In re Motion for Release of Court Records, No. Misc. 07-01 (F.I.S.C.).6 The FISC agreed with the Government. In denying the ACLU's motion, in that court's first published opinion, the FISC held "nothing in this decision forecloses the ACLU from pursuing whatever remedies may be available to it in a district court through a FOIA request addressed to the Executive Branch." See In fe Motion for Release of Court Records, 526 F. Supp. 2d 484,497 (F.LS.C. 2007).
Having argued successfully in 2007 that FOIA was the proper vehicle to seek release of FISC documents, the Government appears to have been dissembling in 2012 when it argued "the rules and procedures of the FISC restrict the Goverrmlent from disclosing FISC records." Second Supplemental Decl. of Mark A. Bradley ~ 12 (ECF No. 55). The same in~erence could be drawn from the Government's current argument that it did not know until June 2013 that there was no such restriction on FOIA releases of FISC documents. In short, the Government's arguments bear the hallmarks of opportunistic rummaging rather than a coherent strategy.
Nevertheless, the Government contends it was still appropriate to withhold the documents in full because they "included the identifier for communications intelligence or 'COMINT,' which is an identifier for Sensitive Compartmented Information ('SCI') that is associated with the NSA." Gov. Op. Br at 17 (ECF No. 95). The "COMINT" identifier would
6 Available at http://bit.1yllnaXYtD.
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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 10 of 18
have revealed the NSA's involvement with section 215, a classified fact at the time. And redacting classification markings would have been unusual for DO] and permitted a sophisticated adversary to deduce the N8A's involvement. See Gov. Opp. Br. at 16-18. This obscure argument is particularly elusive. Fortunately, it need not be addressed.7 It is enough that by advancing incorrect and inconsistent arguments, the Government acted without the candor this Court expects from it.
And even after the declassification review, the Government continued to withhold documents from the ACLU. The Government's updated Vaughn index contains an entry described simply as "~v1ultiple FISC Orders" fiom ~v1arch 2006 to June 2011, vvith no information on the number of documents in the category, their specific dates, or the content of the orders. Hudson Decl. Ex. A. The Government withheld the Multiple FISC Orders in full, as well as the number and dates ofthose orders, claiming "no further information about the nature or substance [of the Multiple FISC Orders] can be provided without revealing classified information." Hudson Decl. ~ 52. But as the ACLU pointed out, the Government had already publicly disclosed the docket numbers and dates of three orders not listed on the Vaughn index, as well as excerpted text from two of them. See Supplemental Sims Decl. Exs. 4, 5, & 7 (ECF Nos. 99-4, 99-5, & 99-7). The ACLU cited this as proof that the claimed need for secrecy concerning the "Multiple FISC Orders" could not be true. The Government acknowledged its mistake and released redacted copies ofthose three orders. The Government states it failed to locate these orders in its search for responsive documents, and had it done so they would have been
7 However, the Northern District of California concluded in a parallel litigation that "[t]he evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required." Elec. Frontier Found. v. Dep't ofJustice, No. 4:11-cv-05221-YGR (N.D. Cal. June 13,2014) (attached as Ex. 8 to Supplemental Sims Decl. (ECF No. 99-8)).
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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 11 of 18
declassified and produced. Therefore, it claims, this incident does not undermine the arguments in support of absolute secrecy for the "Multiple FISC Orders," because these orders were never included within that category. Letter from AUSA Emily E. Daughtry, July 9,2014 (ECF No. 101).
These developments give this Court pause. The Government's argument that it believed until June 2013 that FISC orders could not be produced in response to FOIA requests strains credulity. Its assertion on the initial summary judgment motion that segregating nonexempt information in FISC orders would leave only "unintelligible sentences and phrases" was incorrect. And it then failed to produce or list on the Vaughn index three documents which the Government had disclosed elsewhere. These inconsistencies shake this Court's confidence in the Government's submissions. The deference the Government ordinarily receives in FOIA cases is rooted largely in the courts' trust that the Government will comply with its statutory obligations. That compliance is not apparent here.
For the reasons below, the Government is entitled to summary judgment with respect to FISC orders, if any, relating solely to the bulk collection of information other than telephony metadata. But because this Court has little faith in the Government's segregability determinations, the other documents in the Government's Vaughn index must be submitted for in camera review.8 See Carter, 830 F.2d at 393.
8 The Northern District of California recently granted summary judgment for the Government with respect to many of the same documents at issue here. See Elec. Frontier Foundation v. Dep't ofJustice, No.4: ll-cv-05221-YGR,
2014 WL 3945646 (N.D. Cal. Aug. 11,2014). However, that court also required ill camera review before granting
the Government's motion.
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III. Deference to Government's National Security Determinations Despite the searching inquiry this Court will give the Government's segregability
determinations, the Government's affidavits are entitled to deference on whether disclosure of certain information would harm national security. In the national security context, a court "must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." ACLU v. Dep't of Justice, 681 F.3d 61,69 (2d Cir. 2012) (emphasis in original) (quoting Wolfv. CIA, 473 F.3d 370,374 (D.C. Cir. 2007». "Minor details of intelligence information may reveal more information than their apparentinsignificance suggests because, much like a piece ofjigsa\v puzzle, [each detail] may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself." Wilner, 592 F.3d at 73 (alteration in original) (quoting Larson, 565 F.3d at 864). "Recognizing the relative competencies of the executive and judiciary, ... it is bad law and bad policy to 'secondguess the predictive judgments made by the government's intelligence agencies' regarding questions such as whether disclosure of terrorist-related surveillance records would pose a threat to national security." Wilner, 592 F.3d at 76 (quoting Larson, 565 F.3d at 865 (D.C. Cir. 2009».
A showing of bad faith on the part of the Government may negate the deference it is owed. See Carney, 19 F.3d at 812. The reasons for this Court's skepti~ism about the Government's segregability determinations are not a basis to second guess its national security assessments. Because the executive is better equipped to determine potential harms to national security than the judiciary, it deserves considerable deference on that issue.
IV. Unspecified Additional FISC Orders Turning at last to a subset of the documents at issue, the Government groups an
unknown number of orders into a single entry in its Vaughn index, described only as "Multiple
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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 13 of 18
FISC Orders" with dates ranging from March 9, 2006 to June 30,2011. Referred to as a "no number, no list" response, the Government acknowledges that responsive documents exist, but does not disclose further information about the documents in this category, including how many there are or on what dates they issued. See N.Y. Times Co. v. U.S. Dep't of Justice, 756 F.3d 100, 105 (2d Cir. 2014) ("N.Y. Times al-Awlaki,,).9 According to the Government, even this seemingly innocuous information could reveal the identities of telecommunications carriers who have provided bulk records and when they did so. Hudson Decl. ,-r,-r 54-56.
In its summary judgment motion, the ACLU treated the documents in the "no number, no list" response as falling within two categories: those that relate to telephony metadata collection and those that relate to the bulk collection of other information. The Government's response acknowledged some of the documents do relate to telephony metadata collection, but refused to confinn or deny the existence of documents relating to the use of section 215 for the bulk collection of other information. This acknowledgment effectively continues the Government's no number, no list response to documents relating to telephony metadata, but makes a "Glomar" response with respect to documents pertaining to the bulk collection of other information. A Glomar response, unlike a no number, no list response, neither confirms nor denies the existence of responsive records. See N.Y. Times (al-Awlaki), 756 F.3d at 105; Wilner, 592 F.3d at 68.
For reasons already given, this Court will examine many of the documents in this case in camera to assess the Government's arguments for itself. But it is clear from the affidavits alone that the Government is entitled to provide a Glomar response with respect to documents
9 This opinion will refer to this decision as the "N.Y. Times Cal-Awlaki)" so as to avoid confusion with the New York Times FOIA action related to this case.
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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 14 of 18
relating solely to the bulk collection of information other than telephony metadata, whether the Government intended to give such a response or not. For the following reasons, summary judgment is granted to the Government for documents, if any, relating solely to information other than telephony metadata, and any such documents need not be submitted for in camera review.
"[A]n agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[] FOIA exception." Wilner, 592 F.3d at 68 (alterations in original) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982». Therefore an agency may make a Glomar response when "the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA exemption." Wilner, 592 F.2d at 70. Here, the Government asserts that the fact of whether the Government is engaging in the bulk collection of information other than telephony metadata is itself exempt from disclosure under
Exemption 1 applies to properly classified national security information. See 5 U.S.c. § 552(b)(1). To be properly classified, national security information must (1) be classified by an "original classification authority," (2) be "owned by, produced by or for, or [] under the control of the United States Government," (3) fall within one or more of eight protected categories of information, and (4) "the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security." Exec. Order No. 13526 § 1. 1(a), 75 Fed. Reg. 707 (Jan. 5,2010). The classification authority must be "able to identify or describe the damage" that would be caused by disclosure of the information. Exec. Order No. 13526 § 1.1(a)(4).
The Government argues the existence or non-existence of other bulk collection programs falls within Exemption 1 because it falls into one of the eight categories of classifiable
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information, "intelligence activities (including covert action), intelligence sources or methods or cryptology," Exec. Order 13526, § lA(c), and because "disclosure of the existence or nonexistence of such activities reasonably could be expected to result in damage to national security." Supplemental Hudson Decl. ~ 13.
Exemption 3 applies to records exempted from disclosure by other federal statutes. See 5 U.S.C. § 552(b)(3).
Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage. Wilner, 592 F.3d at 72 (quoting Ass'n of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331,336 (D.C. Cir. 1987)). "In evaluating whether Exemption 3 applies, a court should 'not closely scrutinize the contents of the withheld document; instead, [it should] detem1ine only whether there is a relevant statute and whether the document falls within that statute.'" N.Y. Times, 872 F. Supp. 2d at 316 (alteration in original) (quoting Krikorian v. Dep't of State, 984 F.2d 461,465 (D.C. Cir. 1993)). The Government argues the existence of other bulk collection programs, if any, falls within Exemption 3 because it is protected by § 102A(i)(1) ofthe National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of2004 (codified at 50 U.S.C. § 3024(i)(1)). The National Security Act is a withholding statute for Exemption 3 purposes. ACLU v. Dep't of Justice, 681 F.3d 61, 72-73 (2d Cir. 2012). § 102A(i)(1) provides that "[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 3024(i)(1). For information which may disclose intelligence sources and methods, Exemption 3 and the National Security Act "provide[]
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overlapping protection" with Exemption 1. Military Audit Project v. Casey, 656 F.2d 724, 736 n.39 (D.C. Cir. 1981).
The ACLU argues that acknowledging the existence of records related to nontelephony metadata bulk collection programs would not reveal the particular "source or method" used by the Government, a requirement under both exemptions as asserted here. But this takes too narrow a view of both what the Government may keep classified and of the capabilities of our adversaries. Assuming for a moment that the Government is not engaging in the bulk collection of anything but telephone records, it is entitled to keep that fact-its lack of additional sources or methods-classified. To acknowledge that would alert potential adversaries that they need not be concerned about bulk collection of other types of information, negating the deterrent effect of not knowing whether the Government is watching or listening. But if the Government is collecting other information in bulle, knowing that could permit a sophisticated adversary, together with disparate other pieces of information, to make an educated guess as to what the Government is doing. A sophisticated adversary could determine what types of information the intelligence community would likely be interested in collecting in bulk and what types of information could in fact be easily collected. Admitting the existence of other bulk collection programs could permit these adyersaries to predict the Government's activities and evade them.
In Wilner, the Second Circuit rejected the plaintiffs' argument that a Glomar response may be used "only to preserve the secrecy of a covert intelligence program or secret intelligence sources or methods." Wilner, 592 F.3d at 69. The court held that a Glomar response may be appropriate even with respect to "a program whose existence has been publicly revealed." Wilner, 592 F.3dat 69. Implicit is that it is appropriate to invoke Glomar here, to
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preserve the secrecy of the existence or non-existence of a covert intelligence program. Accordingly, summary judgment is granted to the Government on this issue.
CONCLUSION For the foregoing reasons, the Government's motion for summary judgment is granted and the ACLU's motion is denied with respect to the Government's Glomar response for responsive documents, if any, relating solely to the use of section 215 for bulk collection of information other than telephony metadata. The Government is directed to submit the remaining documents for in camera review by October 17, 2014. The Government is invited to make a further submission either reconsidering its determinations and proposing redactions or providing further support as to why these documents should be withheld in full. Any ruling on the remainder of the summary judgment motions is deferred pending this Court's review.

New York, New York

SO ORDERED:

" "\)~ III ~~l>== ~

nA.","

WILLIAM H. PAULEY

.

U.S.D.l.

Counsel ofRecord:
Patrick C. Toomey, Esq. Alexander A. Abdo, Esq. Jameel Jaffer, Esq. American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
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Case 1:11-cv-07562-WHP Document 110 Filed 10/06/14 Page 18 of 18
Arthur N. Eisenberg, Esq. Beth Haroules, Esq. New Yark Civil Liberties Union Foundation 125 Broad Street, 19th Floor New Yark, NY 10004 Charles S. Sims, Esq. Richard 1. Haddad, Esq. Proskauer Rose LLP 11 Times Square New York, NY 10036 Counsel for Plaintif.f.s Emily E. Daughtry, Esq. John D. Clopper, Esq. U.S. Attorney's Office, SDNY 86 Chambers Street New Yark, NY 10007 Counsel for Defendants
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 Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 1 of 33

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES CO., et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant.
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION, et al.,
Defendants.

11 Civ. 6990 (WHP) ECF Case
11 Civ. 7562 (WHP) ECF Case

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ CROSS-MOTIONS FOR SUMMARY JUDGMENT AND PARTIAL SUMMARY JUDGMENT AND IN FURTHER SUPPORT OF THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT
AND FOR PARTIAL SUMMARY JUDGMENT

JOHN D. CLOPPER EMILY E. DAUGHTRY Assistant United States Attorneys
— Of Counsel —

PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street, 5th Floor New York, New York 10007 Tel.: (212) 637-2716

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 2 of 33
TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................3
I. EXEMPTION 1 AUTHORIZES THE WITHHOLDING OF THE REPORT ........................................................................................................................3
A. The Report Is Properly Classified......................................................................3
B. Plaintiffs’ Attacks on the Government’s Declarations Are Without Merit.....................................................................................................5
1. The Standard of Review Calls for Deference to the Bradley Declarations..............................................................................5
a. The Court Should Defer to the Government’s Assessment of National Security Harm ...........................................5
b. The Bradley Declarations Are Entitled to a Presumption of Good Faith ..............................................................7
2. The Report Does Not Contain Segregable “Abstract Legal Analysis”......................................................................................8
3. The Government’s Declarations Provide Sufficient Detail ....................................................................................................10
a. The Unclassified Bradley Declaration Provides Plausible and Logical Grounds for Withholding the Report .............................................................................................10
b. The Government’s Submission of a Classified Declaration Is Proper .....................................................................12
c. The Cases Cited By Plaintiff Challenging the Government’s Declarations Are Inapposite...................................14
II. EXEMPTION 3AUTHORIZES THE WITHHOLDING OF THE REPORT ......................................................................................................................15
III. THE CONCEPT OF “SECRET LAW” IS NOT APPLICABLE IN THE CONTEXT OF EXEMPTIONS 1 OR 3 .............................................................17
A. The Concept of “Secret Law” Arises in the Context of Exemption 5 .....................................................................................................18

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 3 of 33 B. There Is No Legal or Logical Connection Between the Concept of “Secret Law” and Exemptions 1 or 3 ..........................................................22
CONCLUSION ..............................................................................................................................25
ii

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 4 of 33
TABLE OF AUTHORITIES
CASES ACLU v. DOD,
628 F.3d 612 (D.C. Cir. 2011) .....................................................................................11, 16 ACLU v. Dep’t of Justice,
265 F. Supp. 2d 20 (D.D.C. 2003) .....................................................................................24 ACLU v. ODNI,
2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) .............................................................14, 16 Adamowicz v. IRS,
552 F. Supp. 2d 355 (S.D.N.Y. 2008)................................................................................17 Afshar v. Department of State,
702 F.2d 1125 (D.C. Cir. 1983) ...................................................................................19, 20 Amnesty Int’l USA v. CIA,
728 F. Supp. 2d 479 (S.D.N.Y. 2010)................................................................................14 Assembly of California v. United States Department of Commerce,
968 F.2d 916 (9th Cir. 1992) .............................................................................................18 Associated Press v. DOD,
498 F. Supp. 2d 707 (S.D.N.Y. 2007)................................................................................14 Azmy v. DOD,
562 F. Supp. 2d 590 (S.D.N.Y. 2008)................................................................................11 Berman v. CIA,
501 F.3d 1136 (9th Cir. 2007) ...........................................................................................23 CIA v. Sims,
471 U.S. 159 ......................................................................................................................17 Caplan v. Bureau of Alcohol Tobacco & Firearms,
131 S. Ct. 1259 (2011) .......................................................................................................22 Crooker v. Bureau of Alcohol, Tobacco & Firearms,
670 F.2d 1051 (D.C. Cir. 1981) ...................................................................................19, 23
iii

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 5 of 33
Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003) .....................................................................................5, 6, 7
Cuneo v. Schlesinger, 484 F.2d 1086 (D.C. Cir. 1973) .........................................................................................19
Diamond v. FBI, 707 F.2d 75 (2d Cir. 1983)...................................................................................................6
El Badrawi v. Dep’t of Homeland Security, 583 F. Supp. 2d 285 (D. Conn. 2008) ..........................................................................14, 15
Ferrigno v. U.S. Dep’t of Homeland Security, 2011 WL 1345168 (S.D.N.Y. March 29, 2011) ................................................................10
Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) .........................................................................................6, 7
Founding Church of Scientology v. NSA, 610 F.2d 824 (D.C. Cir. 1979) ...........................................................................................16
Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) .............................................................................................8
Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) ...........................................................................................8
Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) .............................................................................................6
Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999)...............................................................................................14
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)...........................................................................................................13
Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979) .......................................................................10, 12, 13, 14
Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) ...........................................................................................13
Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414 (2d Cir. 1989).................................................................................................8
iv

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 6 of 33
Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239 (2d Cir. 2006).................................................................................................9
Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004) .........................................................................................13
Jones v. FBI, 41 F.3d 238 (6th Cir. 1994) .................................................................................................7
Jordan v. Dep’t of Justice, 591 F.2d 753 ..........................................................................................................19, 22, 23
Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) .................................................................................7, 12, 16
McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983) .........................................................................................13
Milner v. Department of Navy, 131 S. Ct. 1259 (2011) .................................................................................................19, 23
NLRB v. Sears, Roebuck & Co., 421 U.S. 136 (1975)...........................................................................................................20
Nat’l Council of La Raza, 411 F.3d 350 (2d Cir. 2005).........................................................................................20, 22
National Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001) ...........................................................................................13
Navasky v.CIA, 499 F. Supp. 269 (S.D.N.Y. 1980)...............................................................................16, 17
New York Times Co. v. DOD, 499 F. Supp. 2d 501(S.D.N.Y. 2007).................................................................................16
In re New York Times Co., 577 F.3d 401 (2d Cir. 2009)...............................................................................................13
PHE, Inc. v. DOJ, 983 F.2d 248 (D.C. Cir. 1993) ...........................................................................................19
People for the American Way Foundation v. NSA, 462 F. Supp. 2d 21 (D.D.C. 2006) .....................................................................................24
v

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 7 of 33
Pollard v. FBI, 705 F.2d 1151 (9th Cir. 1983) ...........................................................................................14
Public Citizen, Inc. v. Office of Mgmt & Budget, 598 F.3d 865 (D.C. Cir. 2010) ...........................................................................................22
Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) .....................................................................................6, 16
Sterling Drug Inc. v. Federal Trade Commission, 450 F.2d 698 (D.C. Cir. 1971) ...........................................................................................20
Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005) .............................................................................................13
Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003) ...........................................................................................13
Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002) .............................................................................................25
Terkel v. AT&T, 441 F. Supp. 2d 899 (N.D. Ill. 2006)— .............................................................................17
Washington Post v. DOD, No. 84-2949, 1987 U.S. Dist. LEXIS 16108 (D.D.C. Feb. 25, 1987) .................................8
Weissman v. CIA, 565 F.2d 692 (D.C. Cir. 1977) ...........................................................................................16
Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009)......................................................................................... passim
Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) .............................................................................................6
STATUTES
50 U.S.C. § 403-1(i).......................................................................................................................10
50 U.S.C. § 1861............................................................................................................................11
vi

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 8 of 33 PATRIOT Sunsets Extension Act of 2011, § 2,
Pub. L. No. 112-14, 125 Stat. 216 (May 26, 2011) .................................................1, 16 USA PATRIOT Act, Pub. L. 107-56 (Oct. 26, 2001) ...................................................................17
vii

Case 1:11-cv-06990-WHP Document 23 Filed 04/23/12 Page 9 of 33
PRELIMINARY STATEMENT Defendant United States Department of Justice (“DOJ” or the “Government”) respectfully submits this memorandum of law in opposition to plaintiffs’ cross-motion for summary judgment and partial summary judgment and in further support of its motion for summary judgment in The New York Times Co. v. United States Department of Justice, 11 Civ. 6990, and partial summary judgment in American Civil Liberties Union v. Federal Bureau of Investigation, 11 Civ. 7562. As set forth in the Government’s memorandum of law in support of its motion (“Gov. Opening Br.”), the Government properly withheld from disclosure the record at issue here—a classified report provided to Congress by the Attorney General and the Director of National Intelligence relating to an intelligence collection operation authorized by Section 215 of the USA PATRIOT Act (the “Report”)—pursuant to Exemptions 1 and 3. The Government has explained in both an unclassified declaration and a classified declaration submitted ex parte and in camera that the Report is properly classified in its entirety because it describes a specific intelligence collection operation and public revelation of this operation would provide the United States’ adversaries and foreign intelligence targets with insight into the Government’s intelligence collection capabilities. Furthermore, the Report is exempt from disclosure under Section 102A of the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403-1(i), because, inasmuch as the Report describes a specific intelligence collection operation, its disclosure would reveal intelligence sources and methods. In their opposition and cross-motion, plaintiffs do not seriously contend that the Government’s explanation for withholding the Report is not logical or plausible—which is all it

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need be in order for the Government to prevail on summary judgment. Instead, plaintiffs have attacked the Government’s withholding primarily on the grounds that the declarations submitted by the Government are insufficient in various ways. Plaintiffs also rely on the novel argument that, regardless of the applicability of FOIA Exemptions 1 and 3, a classified document describing intelligence activities and containing sensitive intelligence sources and methods cannot be withheld because it constitutes “secret law.”
None of plaintiffs’ arguments regarding the insufficiency of the Government’s declarations have any merit. As an initial matter, plaintiffs draw attention to FOIA’s de novo standard of review, without acknowledging the deference that is owed to the Executive Branch’s unique expertise in assessing the harm to national security that could result from release of information in the Report. Plaintiffs also speculate that the Report contains “abstract legal analysis,” and they then posit that such legal analysis must be segregable from any classified information, despite the fact that the Government’s submissions have consistently and specifically explained that the Report describes an intelligence collection operation and contains no segregable information. And although plaintiffs complain that the Government’s public filings contain insufficient information to allow the Court to determine whether the record was properly withheld under FOIA Exemptions 1 and 3, the Government has submitted declarations that confirm a proposition that plaintiffs ultimately do not, and cannot, take issue with—namely, that disclosing information regarding a specific, secret intelligence collection operation to the nation’s adversaries will harm national security. In its public filing, the Government has provided as much detail as possible, consistent with its obligation to maintain the secrecy of the information contained in the record, and with sufficient specificity to permit plaintiffs to participate meaningfully in the litigation. To the extent further information would facilitate the
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Court’s review, the Government has properly supplemented its public filings with a classified declaration submitted in camera. Taken individually or together, the Government’s submissions describe the Report with the reasonable specificity necessary to allow the Court to undertake meaningful review.
Plaintiffs’ argument that the Report cannot be withheld because it constitutes “secret law” is equally without merit. It is not accurate to characterize the Report as “secret law” that must be disclosed under FOIA. In fact, the concept of “secret law” has never been applied in the context of Exemptions 1 and 3, nor does it make any sense to import to this concept here. To be sure, the Report has been classified because it relates to intelligence collection activities, the disclosure of which would harm national security and undermine the effectiveness of the nation’s intelligence tools. But FOIA does not require that the Government disclose a court-authorized, properly classified intelligence operation carried out pursuant to a public statute simply because plaintiffs have mislabeled it “secret law.”
ARGUMENT I. EXEMPTION 1 AUTHORIZES THE WITHHOLDING OF THE REPORT
A. The Report Is Properly Classified The Government’s declarations, including both the unclassified and classified declarations of Mark A. Bradley (“Unclass. Bradley Decl.” and “Class. Bradley Decl.,” respectively), establish that the classification of the Report is both procedurally and substantively proper. See Gov. Opening Br. at 7-9. First, the information in the Report has been reviewed by an original classification authority. See Unclass. Bradley Decl. ¶ 2, Class. Bradley Decl. Further, the information contained in the Report falls within one of the eight protected categories listed in Section 1.4 of Executive Order 13526. Specifically, the Report is covered by the
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categories set forth in subparagraphs (c) and (g), which respectively authorize the classification of information concerning “intelligence activities (including covert action), intelligence sources or methods, or cryptology,” and “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security.” E.O. 13526 § 1.4(c), (g); see also Unclass. Bradley Decl. at ¶ 8. In addition, the classified information in the Report is “owned by, produced by or for, or under the control of the United States Government,” also as required by E.O. 13526. Unclass. Bradley Decl. ¶ 10.
As set forth in the Government’s declarations, the release of the Report could be expected to cause exceptionally grave harm to the national security by providing the United States’ adversaries and foreign intelligence targets with insights into the Government’s foreign intelligence collection capabilities. Unclass. Bradley Decl. ¶ 9; Class. Bradley Decl. Mr. Bradley further explains that these insights “in turn could be used to develop the means to degrade and evade those collection capabilities.” Unclass. Bradley Decl. ¶ 9. The Government has provided further information in its classified filing, including a more robust description of the contents of the Report and a more detailed description of the national security harm that would result from its release. See Class. Bradley Decl. The law is clear that “[a]n agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Wilner v. NSA, 592 F.3d 60, 73 (2d Cir. 2009) (internal quotation marks and citations omitted). The Government’s explanation of harm, on the public record alone, meets that standard.
While plaintiffs may disagree with Mr. Bradley’s assessment, their conjecture that release of the Report would strengthen rather than harm national security by “alleviat[ing] public concerns” and “reaffirming the nation’s commitment to the rule of law,” New York Times Memorandum of Law in Opposition to the Government’s Motion for Summary Judgment and in
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Support of Their Cross-Motion for Summary Judgment (“NY Times Br.”) at 17 n.5, has no basis in either law or fact. While such arguments may be fodder for a vigorous political debate, they simply do not provide a legal ground for the overturning the Government’s assessment of harm. Indeed, the Court should reject plaintiffs’ effort to second-guess the Executive Branch’s predictions of harm to national security, which is “a uniquely executive purview,” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926-27 (D.C. Cir. 2003), “because the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of a particular classified record.” Id. at 927. Unlike plaintiffs’ uninformed speculation, which is entitled to no deference from the Court, the Government’s determination of harm in national security cases is entitled to deference. See id. (noting that courts have “consistently deferred to executive affidavits predicting harm to national security, and have found it unwise to undertake searching judicial review” on this issue). B. Plaintiffs’ Attacks on the Government’s Declarations Are Without Merit
Nevertheless, plaintiffs attack the Government’s declarations as deficient for several reasons. First, plaintiffs argue that the Court should not grant deference to the Government’s declarations. Second, plaintiffs argue that the unclassified declaration fails to sufficiently address whether the Report contains segregable “legal analysis.” Third, plaintiffs argue that the unclassified declaration lacks the required level of specificity, and that the Government’s use of a classified declaration is inappropriate. As set forth below, none of these arguments has merit.
1. The Standard of Review Calls for Deference to the Bradley Declarations a. The Court Should Defer to the Government’s Assessment of National Security Harm
Plaintiffs’ suggestion that the Court should not grant deference to the Government’s classification of the Report is inconsistent with well-established law. While plaintiffs are correct
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that courts review de novo an agency’s withholding of information in response to a FOIA request, see NY Times Br. at 9, “de novo review in FOIA cases is not everywhere alike,” Assoc. of Retired R.R. Workers, Inc. v. U.S.R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). Plaintiffs disregard the case law requiring that, in assessing the Government’s determination of whether disclosure would harm national security in cases involving Exemption 1, deference be given to agency affidavits. See Wilner, 592 F.3d at 76 (citing Ctr. for Nat’l Sec. Studies, 331 F.3d at 927); Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978). With respect to national security matters, while de novo review provides for “an objective, independent judicial determination,” courts nonetheless defer to an agency’s determination in the national security context, acknowledging that “the executive ha[s] unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record.” Ray, 587 F.2d at 1194.
Accordingly, “in the context of national security concerns, courts must accord substantial weight to an agency’s affidavit concerning the details of the classified status” of a particular record. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quotation marks omitted) (emphasis in original); see also Diamond v. FBI, 707 F.2d 75, 79 (2d Cir. 1983). Indeed, “the court is not to conduct a detailed inquiry to decide whether it agrees with the agency’s opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency.” Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980); accord Wilner, 592 F.3d at 73; Diamond, 707 F.2d at 79; see also Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (disapproving the district court’s use of “its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure”). In other words, in FOIA cases involving Exemption 1, de novo review includes substantial deference to the Executive Branch with respect to the predicate national security findings underlying the classification of
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documents. Ctr for Nat’l Sec. Studies, 331 F.3d at 927; accord Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009); Fitzgibbon, 911 F.2d at 766.
b. The Bradley Declarations Are Entitled To a Presumption of Good Faith Moreover, the Government’s declarations are entitled to a presumption of good faith. Wilner, 592 F.3d at 69. Plaintiffs suggest that the Court should not grant deference to the Government’s declarations, arguing that there is reason to “suspect[]” bad faith in the Government’s decision to withhold the Report because “[t]wo U.S. Senators have publicly said that the Government is misleading the public about” Section 215. NY Times Br. at 19. Neither of the cases upon which plaintiffs rely, however, support their argument. In Wilner, the National Security Agency provided a Glomar response to a FOIA request related to the Terrorist Surveillance Program (“TSP”). 592 F.3d at 75. The plaintiffs argued that no deference to the NSA’s affidavits should be given because, the plaintiffs argued, the TSP was an unlawful program and the agency was attempting to hide its illegality. See id. The Second Circuit rejected the argument, finding no bad faith on the part of the agency because there was no “evidence” that the agency was acting to conceal “illegal or unconstitutional actions.” Id. Similarly, in Jones v. FBI, 41 F.3d 238, 242-243 (6th Cir. 1994), the Sixth Circuit held that “where [] evidence [of underlying illegal conduct] is strong,” the Government’s affidavits would not be entitled to deference. Plaintiffs have not provided any evidence that the Government is withholding the Report for the purpose of concealing illegal conduct. To the contrary, the intelligence collection operation described in the Report has been authorized by an Article III court. Plaintiffs do not claim that the two U.S. Senators have asserted that any illegal conduct has occurred. Rather, plaintiffs rely on statements that the Government is “misleading” the public. Even if these
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statements were true—and they are not—they do not constitute evidence that the Government
has classified the Report in order to conceal illegal conduct, as required by Wilner.1
Accordingly, in the absence of evidence of bad faith, where a court has enough
information to understand why an agency classified information, it should not second-guess the
agency’s facially reasonable classification decisions. Wilner, 592 F.3d at 75 (according
deference to agency declarations and stating that it “[could] not base [its] judgment on mere
speculation that the NSA was attempting to conceal [] purported illegality . . . .”). See also
Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999).
2. The Report Does Not Contain Segregable “Abstract Legal Analysis”
Plaintiffs also argue that the Court should overturn the Government’s classification
determination based on their mistaken speculation that the Report contains “abstract legal
analysis,” see NY Times Br. at 11, that is functionally segregable from information regarding a
classified intelligence collection operation. Although plaintiffs never explicitly define what they
mean by “abstract legal analysis,” it is appears that plaintiffs are attempting to create a
1 With respect to the statements of the Senators cited by the plaintiffs more generally, it also bears noting that courts have held that contrary views of the Legislative Branch, and even of former Executive Branch officials, regarding harm to national security are not sufficient to undermine an agency’s affidavit even when, unlike here, those views are directly presented to the court in declarations. For example, in Washington Post v. DOD, No. 84-2949, 1987 U.S. Dist. LEXIS 16108, at *19-20 (D.D.C. Feb. 25, 1987), the Washington Post sought a classified report describing certain military operations. In support of its request, the Washington Post submitted a declaration from Senator Edward Zorinsky. Senator Zorinsky had reviewed the report, and claimed in his declaration that release of the information contained in the report would not present a threat to national security. Id. The district court rejected this attempt to undermine the Government’s declarations in support of its classification of the report, stating “[a]n affidavit that gives a view of national security harm differing from that presented by the government is alone not sufficient to undermine an agency’s affidavit, even when submitted by an individual knowledgeable in the agency’s area of expertise.” Id. See also Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 421-22 (2d Cir. 1989) (declining to accept opinion of former admiral that classified information had been publicly disclosed and was therefore no longer classified); Gardels v. CIA, 689 F.2d 1100, 1106 n. 5 (D.C. Cir. 1982) (holding that affidavit of former CIA official attesting to lack of harm did not undermine agency’s affidavits).
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distinction between factual information about specific intelligence operations described in the Report and legal analysis. See, e.g., NY Times Br. at 8, 11, 16 (“Plaintiffs seek access only to legal analysis and legal conclusions” but not “anything about specific and legitimately shielded intelligence sources or methods”). In their view, legal analysis would not tend to reveal the classified factual information. Based on this imagined distinction, plaintiffs argue that the Government is required to segregate the “abstract legal analysis” from the classified factual information and release the legal analysis. NY Times Br. at 8, 11, 16.
However, there is no “abstract legal analysis” in the Report of the sort that appears to be envisioned by plaintiffs. As set forth in the accompanying Supplemental Declaration of Mark Bradley (the “Supp. Bradley Decl.”), the Report contains no analysis that is not inextricably intertwined with information about classified intelligence activities. Supp. Bradley Decl. ¶ 9. And, as even the plaintiffs recognize, the law is clear that non-exempt information that is “inextricably intertwined” with exempt information is not segregable and need not be disclosed. See NY Times Br. at 23 (citing cases); see also Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239, 249 n.10 (2d Cir. 2006).
Here, as Mr. Bradley explains, while the Report refers to the statute that authorizes and forms the basis of the classified intelligence collection operation, any reference to that statutory basis is inextricably intertwined with and not segregable from the description of the intelligence collection operation. Supp. Bradley Decl. ¶9. Mr. Bradley explains that no part of the Report can be meaningfully separated from classified information such that its release would not also reveal classified information. Id. In short, the Report does not contain any legal analysis, abstract or otherwise, that is not bound up with the description of the intelligence collection operation. In the judgment of the Executive Branch, release of any portion of the Report,
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whether characterized as legal analysis or not, would disclose classified information about the intelligence collection operation, and that judgment is entitled to this Court’s deference. See Ferrigno v. U.S. Dep’t of Homeland Security, 09 Civ. 5878 (RJS), 2011 WL 1345168, at *10 (S.D.N.Y. March 29, 2011).
3. The Government’s Declarations Provide Sufficient Detail Plaintiffs also contend that the Government’s declarations are not sufficiently detailed to justify withholding the Report as classified. NY Times Br. at 15. But plaintiffs demand far more specificity than the law requires. An agency’s Exemption 1 declaration must be “specific enough to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding,” and it must demonstrate “that material withheld is logically within the domain of the exemption claimed,” King v. DOJ, 830 F.2d 210, 217, 218 (D.C. Cir. 1987). At the same time, however, an Exemption 1 declaration need not contain “‘factual descriptions that if made public would compromise the secret nature of the information.’” Hayden v. NSA, 608 F.2d 1381, 1384-85 (D.C. Cir. 1979). a. The Unclassified Declaration Provides “Logical and Plausible” Grounds for
Withholding the Report Here, the Government has described the contents of the Report and the justification for withholding it with sufficient detail to allow the Court to evaluate whether the Report is properly classified. In its public filings, the Government has provided as complete a description of the Report as possible without revealing classified information: it is a report provided to Congress on a classified basis by the Attorney General and the Director of National Intelligence on February 2, 2011 relating to an intelligence collection operation authorized by Section 215 of the USA PATRIOT Act. Further, the Government has explained that the Report contains “specific descriptions” of the “manner and means by which the United States Government acquires
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tangible things for certain authorized investigations pursuant to Section 215.” Unclass. Bradley Decl. ¶ 9. In addition, if those descriptions were revealed, “highly sensitive intelligence activities, sources and methods” would be exposed. Id. In short, as the unclassified declaration explains, the Report was provided by high-level officials in the United States Government with responsibility for protecting national security to members of Congress with intelligence oversight responsibility, and describes an intelligence collection operation. Moreover, Section 215 is a public law, the contents of which are known: Section 215 permits the Government to apply to the Foreign Intelligence Surveillance Court (“FISA Court”) for a court order directing the production of “any tangible things” for certain authorized investigations. 50 U.S.C. § 1861(a)(1).
Nor does the unclassified Bradley Declaration “merely restat[e] the standards” in the Executive Order, as plaintiffs argue. See NY Times Br. at 17. Rather, the declaration sets forth a “logical and plausible” basis, see Wilner, 592 F.3d at 73; ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011), for Mr. Bradley’s conclusion that harm would result from the disclosure of the Report. He explains that because the document describes an intelligence collection operation, the disclosure of the Report could provide insight into the nation’s foreign intelligence capabilities that the United States’ adversaries and foreign intelligence targets could use to evade the collection capabilities or to develop a means to degrade those capabilities. Notwithstanding plaintiffs’ rhetoric, it is simply not an “empty blanket assertion” to posit that if a secret intelligence operation is made public, it becomes easier for an adversary to undermine that operation. See Wilner, 592 F.3d at 73. This is no less true for the intelligence collection operation described in the Report as it is for any other intelligence collection operation that relies
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on secrecy for its effectiveness. See, e.g., Azmy v. DOD, 562 F. Supp. 2d 590, 600 (S.D.N.Y. 2008); Larson, 565 F.3d at 863.
To the extent that the Government’s unclassified filings do not provide more extensive detail of the national security harm involved here, a more detailed discussion cannot be provided on the public record. See Hayden, 608 F.2d at 1384-85.
b. The Government’s Submission of a Classified Declaration Is Proper Moreover, should the Court need more detailed information than can be provided on the public record, the Government has provided further support for its withholding of the Report in a classified declaration. The classified declaration provides additional detail regarding the intelligence collection operation itself as well as the ways in which the United States’ adversaries and foreign intelligence targets could use that classified information to the detriment of the United States. See Class. Bradley Decl. Plaintiffs complain that the Government has relied too heavily on the classified declaration, NY Times Br. at 11, but in FOIA cases involving classified materials, the interest in an open adversarial process must be balanced against the concern that public disclosure of information during litigation will jeopardize national security. As one court in this District recently explained: Important as the constitutional right to due process and the judicial system’s dedication to an adversarial process are, protecting the national security would be a futile effort if those interests automatically trumped national security concerns. The law reflects these competing objectives and allows for some sacrifice of the adversarial process in limited circumstances with national security is implicated. ACLU v. DOD, No. 09 Civ. 8071 (BSJ), slip op. at 5 (S.D.N.Y. Jan. 24, 2012).
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Here, the Government has submitted an ex parte classified declaration in order to protect what courts have recognized as a compelling interest in preventing public disclosure of sensitive and classified information. Hamdan v. Rumsfeld, 548 U.S. 557, 634–35 (2006).
In light of the Government’s compelling interest in protecting national security, courts have consistently recognized (and exercised) their “inherent authority to review classified material ex parte, in camera as part of [their] judicial review function.” Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004); see also ACLU, 09 Civ. 8071, slip op. at 2 (“[I]n the FOIA context, that reluctance [to rely on ex parte submissions] dissipates considerably when the case raises national security concerns”); accord Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 208–09 (D.C. Cir. 2001). Indeed, in sensitive national security cases, “it is simply not possible to provide for orderly and responsible decisionmaking about what is to be disclosed, without some sacrifice to the pure adversary process,” and “Congress has acknowledged that judges must sometimes make these decisions without full benefit of adversary comment on a complete public record.” Hayden, 608 F.2d at 1385; see In re New York Times Co., 577 F.3d 401, 410 n.4 (2d Cir. 2009) (courts must balance transparency with need to protect sensitive information); Sterling v. Tenet, 416 F.3d 338, 348 (4th Cir. 2005) (“the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk”).
Thus, when classified national security information is at issue, “in camera review of affidavits, followed if necessary by further judicial inquiry, will be the norm.” Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003) (quoting McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983)). This is true in a wide variety of contexts, including FOIA. Hayden, 608 F.2d at 1385– 86; Pollard v. FBI, 705 F.2d 1151, 1153–54 (9th Cir. 1983); Amnesty Int’l USA v. CIA, 728 F.
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Supp. 2d 479, 507–08 (S.D.N.Y. 2010). In sum, in a FOIA case such as this, where “public itemization and detailed justification would compromise legitimate secrecy interests,” it is “appropriate to receive affidavits in camera rather than in public.” Hayden, 608 F.2d at 1385.
c. The Cases Cited by Plaintiff Challenging the Declarations Are Inapposite The cases cited by plaintiffs for the proposition that the Government’s declarations are inadequate are inapposite. See NY Times Br. at 17-18 (citing Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999), ACLU v. ODNI, 10 Civ. 4419 (RJS), 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011), El Badrawi v. DHS, 583 F. Supp. 2d 285 (D. Conn. 2008), and Associated Press v. DOD, 498 F. Supp. 2d 707 (S.D.N.Y. 2007)). The courts in these cases found that the Government’s declarations failed to provide the “reasonable specificity” needed for declarations to perform their “functional purpose” of allowing both the plaintiffs to contest the conclusions in the declarations and the courts the opportunity to engage in meaningful review. See Halpern, 181 F.3d at 293. But unlike the instant case, the cases all involved multiple documents and/or multiple redactions, and the courts’ concerns focused on the fact that the declarations described categories of withheld documents or information, using language that was not specifically tailored to the particular documents or redactions at issue. Thus, these courts found that those declarations failed to provide the necessary context to explain why the documents were classified, and specifically how the release of any particular document would harm national security. See Halpern, 181 F.3d at 292-293; ACLU v. ODNI, 2011 WL 5563520, at * 4 -12; El Badrawi, 583 F. Supp. 2d at 314; Associated Press, 498 F. Supp. 2d at 711. By contrast, the Unclassified Bradley Declaration makes clear that the single document at issue is a report submitted to Congress by the Attorney General and the Director of National Intelligence that “contains specific descriptions” of the ways in which the Government conducts
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“certain authorized investigations pursuant to Section 215.” Furthermore, the report “describes highly sensitive intelligence activities, sources and methods.” Compare Unclass. Bradley Decl. ¶ 9 with El Badrawi, 583 F. Supp. 2d at 314 (document at issue contains “information relating to intelligence sources and methods) (emphases added). The Supplemental Bradley Declaration further clarifies that the Report “describes a classified intelligence collection operation.” Supp. Bradley Decl. ¶ 9. By providing this understanding of the contents of the Report, the Government has provided the requisite specificity needed for the declarations to perform their “functional purpose,” namely for plaintiffs and the Court to evaluate the Government’s very specific description of the harm to national security that would result from its disclosure, namely that it “would provide our adversaries and foreign intelligence targets with insight into the United States foreign intelligence collection capabilities,” which they could then use “to develop the means to degrade and evade those collection capabilities.” Unclass. Bradley Decl. ¶ 9.
Moreover, in order to ensure that the Court has sufficient information, the Government has provided a classified declaration, setting forth additional detail that cannot be revealed on the public record, for the Court’s review in camera. See Class. Bradley Decl.2 II. EXEMPTION 3 AUTHORIZES THE WITHHOLDING OF THE
REPORT The Government has also shown that the Report is exempt from release pursuant to Exemption 3. As explained in the Government’s opening brief, the Report was properly withheld pursuant to Section 102A the National Security Act of 1947, as amended by the
2 While the Government does not dispute the Court’s authority to conduct an in camera review of the Report itself, it bears noting that, contrary to plaintiffs’ assertions, see NY Times Br. at 21-24, in camera review is discouraged in national security cases like this one. See Larson, 565 F.3d at 870.
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Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403-1(i). See Gov. Opening Br. at 10. This statute protects intelligence sources and methods from unauthorized disclosure and indisputably qualifies as an Exemption 3 statute. See New York Times Co. v. DOD, 499 F. Supp. 2d 501, 512 (S.D.N.Y. 2007); ACLU v. DOD, 628 F.3d at 619. Here, the information in the Report is protected from disclosure by the National Security Act because the Report “describes highly sensitive intelligence activities, sources and methods.” See Unclass. Bradley Decl. ¶ 9; Class. Bradley Decl.
Plaintiffs all but ignore the Government’s invocation of Exemption 3 to withhold the Report, making only the unremarkable observation that the Government’s ability to protect information from disclosure under the National Security Act is not “boundless,” NY Times Br. at 14, but limited to “secrecy for ‘intelligence sources and methods,’” id. The Government does not disagree, and does not invoke the National Security Act to protect anything other than intelligence sources and methods. See Unclass. Bradley Decl. ¶ 12; Class. Bradley Decl.
The cases cited by plaintiffs—Founding Church of Scientology v. NSA, 610 F.2d 824 (D.C. Cir. 1979); ACLU v. ODNI, No. 10 Civ. 4419 (RJS), 2012 WL 1117114 (S.D.N.Y. Mar. 30, 2012); Navasky v.CIA, 499 F. Supp. 269 (S.D.N.Y. 1980), and Terkel v. AT&T, 441 F. Supp. 2d 899 (N.D. Ill. 2006)—are cited for the unexceptional proposition that, as the Navasky court put it, the materials sought must “logically fall into the categories of ‘intelligence sources and methods.’” Navasky, 499 F. Supp. 2d at 274. There can be no dispute on this issue in the instant case. As the Supreme Court held in Sims, the Government’s discretion to determine what would constitute an unauthorized disclosure of intelligence and methods is “very broad.” CIA v. Sims, 471 U.S. 159, 168-169. (1985). The Government has repeatedly stated, and its declarations demonstrate, that the Report describes an intelligence collection operation authorized by Section
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215 of the USA PATRIOT Act. See Unclass. Bradley Decl. ¶ 9, Supp. Bradley Decl. ¶ 9, Class.
Bradley Decl. Even without the benefit of the Government’s classified filing, it is clear that an
intelligence collection operation by definition describes intelligence sources and methods, which fall within the protection of Section 102A of the National Security Act and Exemption 3.3
Furthermore, as explained in Part I (B)(2), supra, the Report’s description of a classified
intelligence collection operation does not contain any “abstract legal analysis.” See Supp.
Bradley Decl. ¶ 9. To the extent any portion of the Report could be characterized as legal
analysis at all, such analysis is inextricably intertwined with information regarding legitimately
shielded intelligence sources and methods. See id.
III. THE CONCEPT OF “SECRET LAW” IS NOT APPLICABLE IN THE CONTEXT OF EXEMPTIONS 1 OR 3 Despite plaintiffs’ ominous invocation of the specter of “secret law” in this case, the
concept of “secret law,” also referred to as an agency’s “working law,”4 is simply not applicable
here, where the Government is relying solely on Exemptions 1 and 3 to withhold the Report in
full. The crux of plaintiffs’ argument is that once information is labeled “secret law,” it may not
be withheld even when one of the nine FOIA exemptions would otherwise apply. But this
misrepresents a body of FOIA law on this subject stretching back over three decades; “secret
3 The plaintiffs also complain that the Government did not claim Exemption 3 until litigation began. But the Government does not waive the right to assert an exemption simply because the agency has not asserted it at the administrative level. See Adamowicz v. IRS, 552 F. Supp. 2d 355, 361 n. 2 (S.D.N.Y. 2008).
4 The terms “secret law” and “working law” are used interchangeably by the courts. See, e.g., Assembly of California v. United States Department of Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (“Exemption 5 cases contrast agency documents leading to a decision with documents explaining or interpreting a decision after the fact. Because an agency’s interpretations of its decisions often become the ‘working law’ of the agency, documents deemed “post decisional” do not enjoy the protection of the deliberative process privilege. This insures that the agency does not operate on the basis of ‘secret law.’” (citations omitted)).
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law” is manifestly not a carve-out that trumps all FOIA exemptions. Rather, the term “secret
law” arises primarily in the context of Exemption 5 and addresses the Government’s invocation
of the deliberative process privilege to justify the withholding of information; in such cases,
courts consider whether a document is truly deliberative or whether the document is effectively
operating as the agency’s “working law.” Plaintiffs do not cite a single case, nor is the
Government aware of any case, in which a court has even mentioned the term “secret law” as
part of its analysis of Exemptions 1 or 3. Instead, plaintiffs have cherry-picked quotes that
incorporate the phrase “secret law,” often in dicta, from cases analyzing the withholding of
documents under Exemptions 5 and the no longer extant Exemption High 2, and employ these
out of context quotes in an attempt to shoehorn the facts of this case into a wholly inapplicable
framework.
A. The Concept of “Secret Law” Arises in the Context of Exemption 5 The contours of the “secret law” or “working law” concept have been defined primarily
in the context of whether the information in a document is predecisional and deliberative, and therefore protected from disclosure under Exemption 5.5 Specifically, the term describes a
particular type of agency rule or procedure embodied in a non-public document, which has in
5 There is also a line of cases that refer to the term “secret law” in connection with the now defunct FOIA exemption known as “High 2,” which allowed agencies to withhold information the release of which would risk circumvention of regulations or statutes. See Crooker v. ATF, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc), overruled by Milner v. Department of Navy, 131 S. Ct. 1259 (2011). Generally, in these cases courts either allowed the information to be withheld under High 2, distinguishing it, often in dicta, from the type of “secret law” that is incompatible with the concepts of open government that FOIA advances, see, e.g., Caplan v. Bureau of Alcohol Tobacco & Firearms, 587 F.2d 544, 548 (2d Cir. 1978), or find that the information at issue does not fit within the boundaries of High 2, and labeling it “secret law” without any sort of separate “secret law” analysis, see, e.g., Jordan v. DOJ, 591 F.2d 753, 763-771; cf. Cuneo v. Schlesinger, 484 F.2d 1086, 1091 (D.C. Cir. 1973) (noting that it was unclear whether the withheld information contained “secret law” and remanding for the Government to provide additional justification for its withholdings pursuant to Exemptions 2 and 5).
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practice lost its predecisonal and deliberative character, and which could have an impact on the
substantive or procedural rights of individual persons. The D.C. Circuit has explained that
“working law” means “those policies or rules, and the interpretations thereof, that either create or
determine the extent of the substantive rights and liabilities of a person,” Afshar v. Department of
State, 702 F.2d 1125, 1141 (D.C. Cir. 1983) (internal quotation marks and citations omitted), i.e.,
those policies and rules that a private party may have cause to rely on to guide his or her conduct.
See also, e.g., Coastal States Gas Corp.v. Dep’t of Energy, 617 F.2d 854, 869 (D.C. Cir. 1980)
(“working law” or “secret law” consists of agency guidance or precedent applied by agency staff
in their dealings with the public); PHE, Inc. v. DOJ, 983 F.2d 248, 252 (D.C. Cir. 1993) (secret
law is “materials that define standards for determining whether the law has been violated”).
Similarly, the Second Circuit has defined “working law” as “the reasons which [] supply the
basis for an agency policy actually adopted.” Nat’l Council of La Raza, 411 F.3d 350, 360 (2d Cir. 2005) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152 (1975)). 6
This conception of secret law makes sense in the context of Exemption 5, and specifically
the deliberative process privilege, because it helps to distinguish between the types of
6 Even if the Report had been withheld pursuant to the deliberative process privilege under Exemption 5, which as simple matter of fact it was not, the Report would not fall within this definition of secret or working law. As described in Part I, supra, the Report at issue addresses intelligence activities authorized by the FISA Court and conducted pursuant to a public statute with the knowledge of and oversight by Congress. It does not provide the reasons or “basis for an agency policy actually adopted,” La Raza, 411 F.3d at 360, nor does it “create or determine the extent of the substantive rights and liabilities of a person,” Afshar, 702 F.2d at 1141, that such a person might rely on to guide his or her conduct. Plaintiffs have cited no case, and the Government is not aware of any case, which would provide any support whatsoever for characterizing a report to Congress describing a specific court-authorized and congressionally overseen intelligence operation conducted pursuant to a public statute as an agency’s “secret law.” But in any event, the Government has not claimed Exemption 5 as a basis for withholding the Report, and even if it had, as set forth in Part IV, B, infra, the Report would still be properly withheld under Exemptions 1 and 3. See Sears, 421 U.S. at 161.
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communications that are entitled to the protections of the privilege, i.e., non-final deliberations, and communications that are not. Under the deliberative process privilege, the Government is able to withhold predecisional and deliberative documents in order to “prevent injury to the quality of agency decisions,” but cannot withhold “communications made after the decision and designed to explain it.” Sears, 421 U.S. at 151, 152. The Supreme Court defined the latter as the agency’s “working law,” because “it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached,” and “the public is vitally concerned with the reasons which [] suppl[ied] the basis for an agency policy actually adopted.” Id. See also Sterling Drug Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971) (finding non-public final FTC decision memorandum not comprised of “the ideas and theories which go into the making of the law, they are the law itself, and as such they should be made available to the public. . . . to prevent the development of secret law within the Commission”). In other words, the concept of “secret law” arises in the context of Exemption 5 because withholding such information is not compatible with the underlying purpose of the deliberative process privilege—to help ensure “the quality of agency decisions by preserving and encouraging candid discussion between officials.” La Raza, 411 F.3d at 356.
Plaintiffs misrepresent the law, however, by suggesting that in addition to an analysis of the relevant exemption itself, there is a separate “secret law” analysis, or a “secret law” exclusion, that would trump the otherwise valid invocation of a FOIA exemption. See ACLU’s Memorandum of Law in Opposition to the Government’s Motion for Partial Summary Judgment and in Support of Its Cross-Motion for Partial Summary Judgment (“ACLU Br.”) at 9 (the Report “comprises secret law, and thus cannot be withheld as classified”), 13-16; NY Times Br. at 20. But there is no blanket carve-out from FOIA’s nine exemptions. As the Supreme Court
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has explained, “every document generated by an agency is available to the public in one form or another, unless it falls within one of the [FOIA’s] nine exemptions.” Sears, 421 U.S. at 136 (emphasis added). Thus, in a FOIA case, the only relevant inquiry as to whether a document must be disclosed is whether that document properly falls within the scope of one of those nine exemptions. Indeed, plaintiffs have not cited a single case in which a court has found that a document that otherwise could have been withheld pursuant to one of the nine FOIA exemptions must instead be disclosed because it constitutes “secret law.” Rather, in the cases cited by plaintiffs, the courts’ decisions as to whether the documents at issue were required to be disclosed turned on those courts’ analyses of the specific requirements of the particular exemption claimed—Exemption 5 or the now defunct Exemption High 2.
For example, in La Raza, the Second Circuit did not find that, notwithstanding the applicability of Exemption 5, the Office of Legal Counsel memorandum at issue should be disclosed because it was secret law. Rather, the Court found that the Government had improperly invoked Exemption 5 based on the deliberative process privilege. As the Court explained, the memorandum could not be withheld as privileged because it lost its predecisional character once it was adopted by the agency, and thus was effectively operating as the agency’s working law. La Raza, 411 F.3d at 356, 360. See also Pub. Citizen, Inc. v. Office of Mgmt & Budget, 598 F.3d 865, 875 (D.C. Cir. 2010) (holding Exemption 5 inapplicable because document reflecting OMB policy on how it carries out its responsibilities not predecisional or deliberative and thus “fit comfortably within the working law framework”).
In none of these cases did the courts conduct anything akin to plaintiffs’ suggested “secret law” analysis—that is, apply “secret law” as a freestanding rationale to require disclosure under FOIA. Rather, the courts “look[]to the need to prevent accumulation of secret law as
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additional support for the independent conclusion that postdecisional memoranda should be released because their publication would not interfere with the consultative process of government decisionmaking,” Afshar, 702 F.2d at 1142 (describing the Supreme Court’s decision in Sears), or to distinguish the document at issue from secret or working law. See, e.g., Caplan, 587 F.2d at 548 (clarifying that the law enforcement manual at issue is not secret law and meets requirements of High 2 exemption). See also, e.g., Jordan, 591 F.2d at 781-782 (Judge Bazelon providing three-paragraph concurring opinion discussing dangers of secret law following 25-page majority opinion providing detailed analysis explaining why Exemptions 2 and 5 were inapplicable); Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1118 n.117 (Wilkey, J., dissenting) (“Judge Bazelon joined the opinion of the court [in Jordan] without stating any reservations whatsoever about its rationale. His decision to make some additional comments did not diminish the meaning of his adherence to the majority opinion.”). Accordingly, the only legal analysis relevant to the holding in the cases cited by Plaintiffs is whether the claimed FOIA exemption—Exemption 5 or Exemption High 2—applies.
B. There Is No Legal or Logical Connection Between the Concept of “Secret Law” and Exemptions 1 or 3
Nor is there any reason to extend the “secret law” concept to Exemptions 1 or 3. Despite plaintiffs’ attempts to conflate the meaning of the word “secret” in the phrase “secret law” with the use of the word “secret” for national security purposes, see, e.g., ACLU Br. at 1 (“the Court should reject the government’s attempt to keep secret its legal interpretation of Section 215”), the concept of “secret law” as defined in the case law described above is completely separate and distinct from national security information that has been classified as “secret” or “top secret” in accordance with the Executive Order 13526. The Government has not invoked Exemption 5 in this case, and is relying solely on Exemptions 1 and 3 to withhold the Report in full. While the
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withholding of “secret law” is not compatible with the underlying purpose of the deliberative process privilege, it is wholly irrelevant to the underlying purpose of both Exemption 1, which is to withhold information the disclosure of which would cause harm to national security, and Exemption 3, which “permits government agencies to maintain the secrecy of information that is specifically exempted from disclosure by certain statutes.” Berman v. CIA, 501 F.3d 1136, 1140 (9th Cir. 2007) (internal citations omitted). In this case, the statute that exempts the Report from disclosure pursuant to Exemption 3 is the National Security Act, which requires the Government to protect intelligence sources and methods. 50 U.S.C. § 403-1. There is no inherent contradiction between the withholding of an agency’s working law and the need to protect classified information. In other words, a document could in theory fall squarely within the definition of secret or working law as defined in the context of Exemption 5, but still be classified “secret” or “top secret” in order to prevent harm to national security. There is also no inherent contradiction in the withholding of an agency’s working law and the Government’s need to protect intelligence sources and methods.
To find otherwise would turn FOIA analysis on its head, and would in effect allow the disclosure of information despite a court’s own acknowledgement that to do so would cause the national security harm and expose sensitive intelligence sources and methods. However, the law is clear that “[t]he Court’s role with regard to Exemption 1 is only to review the sufficiency and reasonableness of the agency's explanation for its classification decision, giving the agency's determination the heightened deference it is due under the law.” People for the Am. Way Fund. v. NSA, 462 F. Supp. 2d 21, 33 (D.D.C. 2006). See also ACLU v. DOJ, 265 F. Supp. 2d 20, 31 (D.D.C. 2003) (“That the public has a significant and entirely legitimate desire for th[e] information simply does not, in an Exemption 1 case, alter the analysis.”); Wilner, 592 F.3d at
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72 (“Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage”) (internal citations omitted) .
Plaintiffs provide no support for the proposition that if a document could be considered secret or working law, the protections of Exemptions 1 and 3 are no longer available. To the contrary, the Supreme Court has noted explicitly that if a document constitutes working law and therefore cannot be withheld under Exemption 5, it “may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.” Sears, 421 U.S. at 161. See also Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002) (“the District Court correctly determined that IRS need not segregate and release agency working law from TAs withheld in their entirety pursuant to the attorney work product privilege”).
Accordingly, the only relevant analysis in this case is whether Exemptions 1 and 3 in fact apply. As set forth above and in the Government’s opening brief, because the Report is indeed currently and properly classified, Exemption 1 authorizes its withholding. Also as set forth above and in the Government’s opening brief, because the Report contains intelligence sources and methods, it is exempt from disclosure under the National Security Act and Exemption 3 authorizes its withholding. There is simply no basis for also conducting a separate analysis to determine whether the Report fits into the framework of “secret law” as understood in the context of the deliberative process privilege under Exemption 5.
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CONCLUSION

The Government’s motion for summary judgment in The New York Times Co. v. United

States Department of Justice, 11 Civ. 6990, and partial summary judgment in American Civil

Liberties Union v. Federal Bureau of Investigation, 11 Civ. 7562, should be granted.

Dated: New York, New York April 23, 2012

Respectfully submitted,

PREET BHARARA United States Attorney

By:

/s/ John Clopper_____________

JOHN D. CLOPPER

EMILY E. DAUGHTRY

Assistant United States Attorney 86 Chambers Street, 3rd Floor

New York, New York 10007

Telephone: (212) 637-2716 (Clopper)

(212) 637-2777 (Daughtry)

Facsimile: (212) 637-0033

john.clopper@usdoj.gov

emily.daughtry@usdoj.gov

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 Case 1:11-cv-07562-WHP Document 118 Filed 03/31/15 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------X AMERICAN CIVIL LIBERTIES UNION, et ano.,
Plaintiffs,

03/31/2015
11 CIVIL 7562

-against-

JUDGMENT

FEDERAL BUREAU OF INVESTIGATION, et ano.,
Defendants. -----------------------------------------------------------X

Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation

(together, “ACLU”), having commenced this Freedom of Information Act (“FOIA”) action seeking

the disclosure of documents relating to the Government’s use of section 215 of the USA PATRIOT

Act. After resolving one issue on summary judgment in the Government’s favor, this Court reserved

decision on the remainder of the parties’ summary judgment motions pending in camera review of

documents and additional classified submissions from the Government, and the matter having come

before the Honorable William H. Pauley, United States District Judge, and the Court, on March 31,

2015, having rendered its Memorandum & Order (Doc. #117), for the foregoing reasons, this Court

concludes that the Government may withhold the documents listed on its Vaughn index and any

further information about them, under Exemptions 1 and 3 of FOIA. Accordingly, granting the

remainder of the Government's summary judgment motion and denying the ACLU's motion for

summary judgment; and directing the Clerk of the Court to terminate all pending motions and mark

this case as closed, it is,

ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the

Court's Memorandum & Order dated March 31, 2015, for the foregoing reasons, this Court concludes that the Government may withhold the documents listed on its Vaughn index and any

Case 1:11-cv-07562-WHP Document 118 Filed 03/31/15 Page 2 of 2

further information about them, under Exemptions 1 and 3 of FOIA. Accordingly, the remainder of

the Government's summary judgment motion is granted and the ACLU's motion for summary

judgment is denied; accordingly, the case is closed.

Dated: New York, New York March 31, 2015

RUBY J. KRAJICK _________________________
Clerk of Court BY:
_________________________ Deputy Clerk

 
 NATIONAL SECURITY PROJECT
AMERlaii

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK. NY 10004-2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR
RICHARD ZACKS TREASURER

FOIA/PA Mail Referral Unit Department of Justice LOC Building, Room 115 Washington, DC 20530-0001
Carmen L. Mallon Chief of Staff Office of Information Policy Department of Justice
Attn: FOI/PA Request 1425 New York Avenue, N.W., Suite 11050 Washington, D.C. 20530-0001
Office of Public Affairs Department of Justice 950 Pennsylvania Avenue, NW., Room 1128 Washington DC 20530-0001
Federal Bureau of Investigation Record/Information Dissemination Section
Attn: FOI/PA Request 170 Marcel Drive Winchester, VA 22602-4843
Elizabeth Farris, Supervisory Paralegal Office of Legal Counsel Department of Justice
Attn: FOI/PA Request 950 Pennsylvania Avenue, NW, Room 5515 Washington, DC 20530-0001
National Security Division U.S. Department of Justice
Attn: FOI/PA Request 950 Pennsylvania Avenue, N.W., Room 6150 Washington, D.C. 20530-0001

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

May 31, 2011
Dear Freedom of Information Officer,
This letter constitutes a request under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). It is submitted on behalf of the American Civil Liberties Union and the American Civil Liberties Foundation (together, the "ACLU"). 1
I. Background
This request pertains to the use by the Federal Bureau of Investigation ("FBI") of the powers enumerated in Pub. L. 107-56, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, commonly known as the USA PATRIOT Act ("PATRIOT Act"). Specifically, this request pertains to the FBI's use and interpretation of Section 215 of the PATRIOT Act, as amended, which permits the government to apply for court orders requiring the production of "tangible things."
II. Records Requested
We request that you release to us any and all records concerning the government's interpretation or use of Section 215, including but not limited to: legal opinions or memoranda interpreting that provision; guidelines informing government personnel how that provision can be used; records containing statistics about the use or misuse of the provision; reports provided by the executive branch to Congress relating to the executive's interpretation, use, or misuse of the provision; forms used by executive agencies in connection with the use of Section 215; and legal papers filed by the government or any other party in the Foreign Intelligence Surveillance Court, and opinions of that court, pertaining to the interpretation, use, or proposed use of Section 215.
With respect to the records described above, we seek only those records drafted, finalized, or issued after March 9, 2006. We do not ask you to disclose the names or identities of those entities or individuals
The American Civil Liberties Union Foundation is a 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases, and educates the public about the civil liberties implications of pending and proposed state and federal legislation, provides analyses of pending and proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their legislators. The American Civil Liberties Union is a separate non-profit, 26 U.S.C. § 501(c)(4) membership organization that educates the public about the civil liberties implications of pending and proposed state and federal legislation, provides analysis of pending and proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their legislators.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

who have been served with Section 215 orders or the names or identities of those individuals or entities about whom records have been sought, but we ask that you disclose any and all records indicating the kinds or types of information that may, as a matter of policy or law, be obtained through the use of Section 215.
With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), we request that responsive electronic records be provided electronically in their native file format, if possible. Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency's possession, and that the records be provided in separate, bates-stamped files.
If any aspect of our request is unclear, we would welcome the opportunity to clarify it. We would also welcome the opportunity to discuss an appropriate processing schedule.
III. Application for Expedited Processing
We request expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E); 28 C.F.R. § 16.5(d). Expedited processing is warranted because the records sought are urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged federal government activity, 28 C.F.R. § 16.5(d)(1)(ii), and because the records sought relate to a "matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence," id. § 16.5(d)(1)(iv).
A. Expedited processing is warranted under 28 C.F.R. 16.5(d)(ii)
The records requested are needed to inform the public about federal government activity. The records relate to the FBI's use of a highly controversial surveillance authority. Specifically, the records requested relate to the FBI's use of Section 215 and to the process the FBI has put in place to ensure that the FBI's use of Section 215 powers conforms to the requirements of the Constitution and statutory law. The records are urgently needed because of recent allegations by some members of the Senate Select Committee on Intelligence that the Justice Department has adopted an overly broad interpretation of Section 215, 2
2 See Charlie Savage, Senators Say Patriot Act Is Being Misinterpreted, N.Y. Times, May 26, 2011, available at http://www.nytimes.com/2011/05/27/us/27patriot.html; Spencer Ackerman, There's a Secret Patriot Act, Senator SaA Wired.com , May 25, 2011, available at http://www .wired.comidangerroom/201 I /05/secret-patriot-act/; 157

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

and because there is an ongoing debate about the appropriate scope of the government's surveillance authorities. 3
The ACLU is "primarily engaged in disseminating information" within the meaning of the statute and regulations. 5 U.S.C. § 552(a)(6)(E)(v)(II); 28 C.F.R. § 16.5(d)(1)(ii). Disseminating information about government activity, analyzing that information, and widely publishing and disseminating that information to the press and public is a critical and substantial component of the ACLU's work and one of its primary activities. See ACLU v. Dep't of Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding non-profit public interest group that "gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience" to be "primarily engaged in disseminating information" (internal citation omitted)).
Cong. Rec. S3259-60 (daily ed. May 24, 2011), available at http://www.gpo.gov/fdsys/pkg/CREC-2011-05-24/pdf7CREC-2011-05-24-ptlPgS3247-7.pdf#page=1.
3 See, e.g., Obama signs Patriot Act extension; will continue anti-terror surveillance powers, Assoc. Press, May 25, 2011, available at http://www.washingtonpost.com/politics/senate-moves-patriot-act-toward-4-yearextension-before-thursday-midnight-deadline/2011/05/25/AGnYjXBH story.html; New tea party senator gets Senate's attention, Assoc. Press, May 25, 2011, ("[Sen. Rand] Paul has delayed action on the intelligence-gathering measures, contending they should expire because the Patriot Act gives the government too much power to monitor people's lives."), available at http://www.foxnews.com/us/2011/05/25/new-tea-partysenator-gets-senates-attention/; Editorial, A chance to put protections in the Patriot Act, Wash. Post, May 25, 2011, available at http://www.washingtonpost.com/opinions/a-chance-to-put-protections-in-the-patriotact/2011/05/25/AGsSPXBH_story.html; Felicia Sonmez, Vote on Patriot Act extension delayed as Rand Paul pushes for amendment on gun rights, Wash. Post, May 25, 2011, available at http://www.washingtonpost.com/blogs/2chambers/post/vote-on-patriotact-extension-delayed-as-rand-paul-pushes-for-amendment-on-gunrights/2011/05/25/AGhzDJBH blog.html; David Kravets, Lawmakers Punt Again on Patriot Act Reform, Wired.com , May 20, 2011, available at http://www.wired.com/threatleve1/2011/05/patriot-act-reform/; David Kravets, House Fails to Extend Patriot Act Spy Powers, Kristy Sidor, The Patriot Act Expiration Controversy, The Observer at Boston College, Feb. 22, 2011, available at http://www.thebcobserver.com/2011/02/22/the-patriot-act-expiration-controversy/; Wired.com , Feb. 8, 2011, available at http://www.wired.com/threatleve1/2011/02/patriot-act-notextended/; Charlie Savage, Battle Looms Over the Patriot Act, N.Y. Times, Sept. 19, 2009, available at http://www.nytimes.com/2009/09/20/us/politics/20patriot.html?partner=rss&emc —rss; Julian Sanchez, A Chance to Fix the PATRIOT Act? Cato At Liberty, Sept. 17, 2009, available at http://www.cato-at-liberty.org/a-chance-to-fix-the-patriot-act/; David Kravets, Obama Backs Extending Patriot Act Spy Provisions, Wired, Sept. 15, 2009, available at http://www.wired.corn/threatleve1/2009/09/obama-backs-expiring-patriotact-spy-provisions/; Adam Cohen, Democratic Pressure on Obama to Restore the Rule of Law, N.Y. Times, Nov. 18, 2008, available at http://www.nytimes.com/2008/11/14/opinion/l4fri4.html.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

The ACLU publishes newsletters, news briefings, right-to-know handbooks, and other materials that are disseminated to the public. Its material is available to everyone, including tax-exempt organizations, not-for-profit groups, law students, and faculty, for no cost or for a nominal fee. Since 2007, ACLU national projects have published and disseminated over 30 reports. Many ACLU reports include description and analysis of government documents obtained through FOIA. 4

The ACLU also disseminates information through its website, www.aclu.org . The website addresses civil liberties issues in depth, provides features on civil liberties issues in the news, and contains hundreds of documents that relate to the issues on which the ACLU is focused. The ACLU's website also serves as a clearinghouse for news about ACLU cases, as well as analysis about case developments, and an archive of case-related documents. Through these pages, the ACLU also provides the public with educational material about the particular civil liberties issue or problem; recent news about the issue; analyses of Congressional or executive branch action on the issue; government documents obtained through FOIA about the issue; and more in-depth analytic and educational multi-media features on the issue. 5 The ACLU website includes many features on information obtained through the FOIA. 6 For example, the ACLU's "Torture

4 See, e.g., ACLU, Reclaiming Patriotism: A Call to Reconsider the Patriot Act (March

2009), available at htt ://www.aclu

t 20090310. cif.

ACLU,TheExclud:IogiasndtheWroIas(Oc.207),

available at http://www.aclu.org/national-security/excluded-ideological-exclusion-and-

war-ideas; ACLU, History Repeated: The Dangers of Domestic Spying by Federal Law

Enforcement (May 2007), available at

http://www.aclu.org/files/FilesPDFs/m1kreport.pdf; ACLU, No Real Threat: The

Pentagon's Secret Database on Peaceful Protest (Jan. 2007), available at

http://www.aclu.org/national-security/no-real-threat-pentagons-secret-database-

peaceful-protest; ACLU, Unpatriotic Acts: The FBI's Power to Rifle Through Your

Records and Personal Belongings Without Telling You (July 2003), available at

http://www.aclu.org/files/FilesPDFs/spies report.pdf.

5 For example, the ACLU's website about national security letter ("NSL") cases, www.aclu.org/nsl, includes, among other things, an explanation of what NSLs are; information about and document repositories for the ACLU's NSL cases; links to documents obtained through FOIA about various agencies' use of NSLs; NSL news in the courts, Congress, and executive agencies; links to original blog posts commenting on and analyzing NSL-related news; educational web features about the NSL gag power; public education reports about NSLs and the Patriot Act; news about and analysis of the Department of Justice Inspector General's reviews of the FBI's use of NSLs; the ACLU's policy analysis and recommendations for reform of the NSL power; charts with analyzed data about the government's use of NSLs; myths and facts documents; and links to information and analysis of related issues.

6 See, e.g., http://www.aclu.org/accountability/released.html (Torture FOIA); http://www.aclu.org/accountability/olc.html (OLC Memos);

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

FOIA" webpage, http://www.aclu.org/accountability/released.html, contains commentary about the ACLU's FOIA request, press releases, analysis of the FOIA documents, and an advanced search engine permitting webpage visitors to search approximately 150,000 pages of documents obtained through the FOIA.
The ACLU has also published a number of charts that collect, summarize, and analyze information it has obtained through FOIA. For example, through compilation and analysis of information gathered from various sources—including information obtained from the government through FOIA—the ACLU has created a chart that provides the public and news media with a comprehensive index of Bush-era Office of Legal Counsel memos relating to interrogation, detention, rendition and surveillance and that describes what is publicly known about the memos and their conclusions, who authored them and for whom, and whether the memos remain secret or have been released to the public in whole or in part. 7 Similarly, the ACLU produced a chart of original statistics about the Defense Department's use of National Security Letters based on its own analysis of records obtained through FOIA. 8
B. Expedited processing is warranted under 28 C.F.R. 16.5(d)(iv)
The records requested also relate to a "matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." 28 C.F.R. § 16.5(d)(1)(iv).
Since the PATRIOT Act's enactment , in 2001, Section 215 has been the subject of considerable and sustained media attention. 9 Over the
http://www.aclu.org/national-security/csrt-foia (CSRT FOIA); http://wwvv.aclu.org/national-security/aclu-v-doj-lawsuit-enforce-nsawarrantlesssurveillance-foia-request (NSA FOIA); http://www.aclu.org/national-security/patriotfoia (Patriot Act FOIA); http://www.aclu.org/national-security_technolo y-andliberty/spyfiles (Spy Files).
The chart is available at http://www.aclu.org/files/assets/olcmemos chart.pdf.
The chart is available at http://www.aclu.org/files/assets/nsl_stats.pdf.
9 See, e.g., Editorial, Breaking a Promise on Surveillance, N.Y. Times, July 29, 2010, available at hap ://www.nytimes.com/2010/07/30/opinion/30fril.html; Editorial, Patriot Act Excesses, N.Y. Times, Oct. 7, 2009, available at http://www.nytimes.com/2009/10/08/opinion/08thul.html; Press Release, Leahy renews effort to extend expiring PATRIOT Act provisions, available at http://vtdigger.org/2011/01/27/leahy-renews-effort-to-extend-expiring-patriot-actprovisions/; Fred H. Kate, Legal Restrictions on Transborder Data Flows to Prevent Government Access to Personal Data: Lessons from British Columbia, The Ctr. for Info. and Policy Leadership, Aug. 2005, available at

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

last months, as Congress has debated reauthorization of certain PATRIOT Act provisions, including Section 215, media and public attention has intensified. 1° Many recent news stories have included allegations by members of the Senate Select Committee on Intelligence that the Department of Justice has adopted an overbroad construction of Section 215. 11 While the Department of Justice claimed only to have

http://blog.surveymonkey.com/wp-content/uploads/2011 /05/various-Canadians-have-

made-similar-points.pdf; Taking Issue: The Patriot Act: Section 215, NPR.org , July 21,

2005, available at

htt ://www.n r.org

issue patriotact.html; Heather

McDonald, Patriot Act: Let Investigators Do Their Job, NPR.org, July 20, 2005,

available at http://www.npr.org/templates/story/story.php?storyld=4763326; Larry

Abramson and Maria Godoy, The Patriot Act: Key Controversies, NPR, Dec. 16, 2005,

available at http://www.npr.org/news/specials/patriotact/patriotactdeal.html; Dahlia

Lithwick and Julia Turner, A Guide to the Patriot Act, Part 1, Slate, Sept. 8, 2003,

available at http://www.slate.com/id/2087984/.

10 See, e.g., Charlie Savage, Patriot Battle Could Hinder Investigators, N.Y. Times, May 25, 2011, available at http://www.nytimes.com/2011/05/26/us/politics/26patriot.html; Senate moves to break impasse, vote on controversial provision of Patriot Act, Assoc. Press, May 24, 2011, available at http://www.washingtonpost.com/politics/congress-races-to-extend-patriotact-send-to-obama-in-europe-before-friday-
deadline/2011/05/24/AFrxmlAH story.html; Charlie Savage, Deal Reached on Extension of Patriot Act, N.Y. Times, May 19, 2011, available at http://www.nytimes.com/2011/05/20/us/20patriot.html; Editorial, In Patriot Act vote, Tea Party stands up for civil liberties, Boston Globe, Feb. 14, 2011, available at h ://www.boston.com/boston lobe/editorial o inion/editorials/articles/2011/02/14/in
patriot act vote tea pa stands up for civil liberties/; Tom Gantert, Civil Liberties Concerns Caused Amash to Vote Against PATRIOT Act, Michigan Capitol Confidential, Feb. 11, 2011, available at http://www.michigancapitolconfidential.com/14549; Charlie Savage, Battle Looms Over the Patriot Act, supra note 3.

11 See, e.g., 4 senators win promise of a Patriot Act hearing, Assoc. Press, May 26, 2011, available at http://www.boston.com/news/nation/washington/articles/2011/05/26/2Jenators_wifts
romise of patriot act_hearingsZ; Spencer Ackerman, There's a Secret Patriot Act, Senator Says, Wired.com , see supra note 2; "Secret" legal interpretation of Patriot Act provisions troubles 4 Senators, Assoc. Press, May 26, 2011, available at http://www.washingtonpost.com/politics/secret legal interpretation of--patriot -
provisions-troub1es-2-senators/2O11/O5/26/AGFczGCH story.html; "Secret" legal interpretation of Patriot Act provisions troubles 2 Senators, Assoc. Press, May 26, 2011, available at http://www.washingtonpost.com/politics/secret-legal-interpretationof-patri ot-act-provi si ons-troubl es-2-s enators/2011/05/26/AG7ffICH_story.html; Charlie Savage, Senators Say Patriot Act Is Being Misinterpreted, N.Y. Times, May 26, 2011, see supra, note 2; Steven Aftergood, Sen. Wyden Decries "Secret Law" on PATRIOT Act, Secrecy News, May 25, 2011, available at http://www.fas.org/blog/secrecy/2011/05/wyden, secret law.html; Marcy Wheeler,
Wyden and Udall Want Obama to Admit to Secret Collection Program, Emptywheel, May 24, 2011, available at http://emptywheel.firedoglake.com/2011/05/24/wyden-andudall-want-obama-to-admit-to-secret-collection-program/.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

used Section 215 powers 21 times in 2009 12 and 96 times in 2010, 13 SenatorsRWydMkUal,ongwitherscly
proffered an amendment to address the government's "secret[] reinterpretation [of] public laws and statutes in a manner that is inconsistent with the public's understanding of these laws." 14 In that same congressional session, Senator Ron Wyden stated in open Congress that he "certainly believe[s] the public will be surprised again when they learn about some of the interpretations of the PATRIOT Act," suggesting that the FBI's numbers or public statements may be misleading or incomplete. 15
IV. Application for Waiver or Limitation of Fees
A. A waiver of search, review, and duplication fees is warranted under 28 C.F.R. § 16.11(k)(1).
The ACLU is entitled to a waiver of search, review, and duplication fees because disclosure of the requested records 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. 5 U.S.C. § 552(a)(4)(A)(iii); 28 C.F.R. § 16.11(k)(1).
The requesters are making this request specifically to further the public's understanding of the government's use of surveillance powers inside the United States. As the dozens of new articles cited above make clear, disclosure of the requested records will contribute significantly to public understanding of the operations and activities of the government. See 28 C.F.R. § 16.11(k)(1)(i). Disclosure is not in the ACLU's commercial interest. Any information disclosed by the government in response to this FOIA request will be made available to the public at no
12 See Letter to the Hon. Joseph R. Biden, Jr., Department of Justice, Office of Legislative Affairs, Apr. 30, 2011, available at http://www.fas.org/irp/agency/doj/fisa/2009rept.pdf.
13 See Letter to the Hon. Harry Reid, Department of Justice, Office of Legislative Affairs, Apr. 29, 2011, available at http://www. fas.org/irp/agency/doj/fisa/2010rept.pdf
14 See 157 Cong. Rec. S3283 (daily ed. May 24, 2011) (SA 339, amendment of Mr. Wyden), available at http://www.goo.gov/fdsys/pkg/CREC-2011-05-24/pdf/CREC2011-05-24-ptl-PgS3281.pdf#page=3
15 See 157 Cong. Rec. S3258-62, (daily ed. May 24, 2011), available at http://www.goo.gov/fdsys/pkg/CREC-2011-05-24/pdf/CREC-2011-05-24-ptlPRS3247-7.pdf#page=1.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

cost. A fee waiver would fulfill Congress's legislative intent in amending FOIA. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) ("Congress amended FOIA to ensure that it be `liberally construed in favor of waivers for noncommercial requests.' (citation omitted)); OPEN Government Act of 2007, Pub. L. No. 110175, § 2, 121 Stat. 2524 (Dec. 31, 2007) (finding that "disclosure, not secrecy, is the dominant objective of the Act," but that "in practice, the Freedom of Information Act has not always lived up to the ideals of the Act").
B. A waiver of search and review fees is warranted under 5 U.S.C. § 551(a)(4)(A)(ii) and 28 C.F.R. 16.11(c)(1)(3), (d)(1)•
A waiver of search and review fees is warranted because the ACLU qualifies as a "representative of the news media" and the records are not sought for commercial use. 5 U.S.C. § 551(a)(4)(A)(ii); 28 C.F.R. §§ 16.11(c)(1)-(3), (d)(1). The ACLU is a representative of the news media in that it is an organization "actively gathering news for an entity that is organized and operated to publish or broadcast news to the public," where "news" is defined as "information that is about current events or that would be of current interest to the public." 5 U.S.C. § 552(a)(4)(A)(ii)(II); 28 C.F.R. § 16.11(b)(6). Accordingly, fees associated with the processing of the Request should be "limited to reasonable standard charges for document duplication." 5 U.S.C. § 552(a)(4)(A)(ii)(II); 28 C.F.R. § 16.11 (d) (search and review fees shall not be charged to "representatives of the news media"); id. § 16.11(c)(3) (review fees charged only for "commercial use request[s]").
The ACLU meets the statutory and regulatory definitions of a "representative of the news media" because it "uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii); see also Nat'l Sec. Archive v. Dep't of Def , 880 F.2d 1381, 1387 (D.C. Cir. 1989) (finding that an organization that "gathers information from a variety of sources," exercises editorial discretion in selecting and organizing documents, "devises indices and finding aids," and "distributes the resulting work to the public" is a "representative of the news media" for purposes of FOIA); cf. ACLU v. Dep't of Justice, 321 F. Supp. 2d at 30 n.5 (finding non-profit public interest group to be "primarily engaged in disseminating information"). The ACLU is a "representative of the news media" for the same reasons it is "primarily engaged in the dissemination of information." See e.g., Elec. Privacy Info. Ctr. v. Dep't of Def, 241 F. Supp. 2d 5, 10-15 (D.D.C. 2003) (finding nonprofit public interest group that disseminated an electronic newsletter and

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

published books was a "representative of the media" for purposes of FOIA). 16
If the request is denied in whole or in part, we ask that you justify all withholdings by reference to specific exemptions to the FOIA. We also ask that you release all segregable portions of otherwise exempt material. We reserve the right to appeal a decision to withhold any information or to deny a waiver of fees.
Please be advised that, because we are requesting expedited processing under 28 C.F.R. §§ 16.11(d)(1)(iv) as well as 16.11(d)(1)(ii), we are sending a copy of this letter to DOJ's Office of Public Affairs. Whatever the determination of that office, we look forward to your reply within 20 business days, as the statue requires under section 552(a)(6)(A)(I).
Thank you for your prompt attention to this matter. Please furnish all applicable records to:
Jameel Jaffer Deputy Legal Director American Civil Liberties Union 125 Broad St., 18 th Floor New York, NY 10004

16 On account of these factors, fees associated with responding to FOIA requests are regularly waived on the grounds that the ACLU is a "representative of the news media." In October 2010, the Department of the Navy granted a fee waiver to the ACLU with respect to a request for documents regarding the deaths of detainees in U.S. custody. In January 2009, the CIA granted a fee waiver with respect to the same request. In March 2009, the Department of State granted a fee waiver to the ACLU with respect to its request for documents relating to the detention, interrogation, treatment, or prosecution of suspected terrorists. Likewise, in December 2008, the Department of Justice granted the ACLU a fee waiver with respect to the same request. In May 2005, the Department of Commerce granted a fee waiver to the ACLU with respect to its request for information regarding the radio frequency identification chips in United States passports. In March 2005, the Department of State granted a fee waiver to the ACLU with respect to a request regarding the use of immigration laws to exclude prominent non-citizen scholars and intellectuals from the country because of their political views. Also, the Department of Health and Human Services granted a fee waiver to the ACLU with regard to a FOIA request submitted in August of 2004. In addition, the Office of Science and Technology Policy in the Executive Office of the President said it would waive the fees associated with a FOIA request submitted by the ACLU in August 2003. Finally, three separate agencies—the Federal Bureau of Investigation, the Office of Intelligence Policy and Review, and the Office of Information and Privacy in the Department of Justice did not charge the ACLU fees associated with a FOIA request submitted by the ACLU in August 2002.

Under penalty of perjury, I hereby affirm that the foregoing is true and correct to the best of my knowledge and belief

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Alexander Abdo American Civil Liberties Union
Foundation 125 Broad Street, 18 th Floor New York, NY 10004 Tel. 212-519-7814 Fax 212-549-2654

 
 Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 1 of 15
CLOSED,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−07562−WHP

American Civil Liberties Union et al v. Federal Bureau of Investigation et al Assigned to: Judge William H. Pauley, III Related Cases: 1:11−cv−06990−WHP
1:13−cv−03994−WHP Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/26/2011 Date Terminated: 03/31/2015 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union

represented by Stuart Andrew Youngs Proskauer Rose LLP Eleven Times Square New York, NY 10036 (212)−969−3797 Fax: (212)−969−2900 Email: syoungs@proskauer.com TERMINATED: 03/18/2013 LEAD ATTORNEY

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 ATTORNEY TO BE NOTICED

Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607−3300 Fax: (212) 607−3318 Email: arteisenberg@nyclu.org ATTORNEY TO BE NOTICED

Beth Haroules New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 212.344.3005 Fax: 212.344.3318 Email: BHaroules@nyclu.org ATTORNEY TO BE NOTICED

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

Charles S. Sims Proskauer Rose LLP (NY) 11 Times Square

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 2 of 15

New York, NY 10036 212.969.3000 Fax: 212.969.2900 Email: csims@proskauer.com 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 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

Richard Inad Haddad Proskauer Rose LLP (NY) 11 Times Square New York, NY 10036 (212)−969−3000 Fax: (212)−969−2900 Email: rhaddad@proskauer.com ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Foundation

represented by Stuart Andrew Youngs (See above for address) TERMINATED: 03/18/2013 LEAD ATTORNEY

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Arthur Nelson Eisenberg (See above for address) ATTORNEY TO BE NOTICED

Beth Haroules (See above for address) ATTORNEY TO BE NOTICED

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

Charles S. Sims (See above for address) ATTORNEY TO BE NOTICED

Jameel Jaffer

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 3 of 15
(See above for address) ATTORNEY TO BE NOTICED
Patrick Christopher Toomey (See above for address) ATTORNEY TO BE NOTICED
Richard Inad Haddad (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Federal Bureau of Investigation
Defendant United States Department of Justice

represented by John Dalton Clopper U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 212 637 2716 Fax: 212 637 0033 Email: john.clopper@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Ewell Daughtry U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2800 x1579 Fax: (212)−637−2717 Email: emily.daughtry@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Dalton Clopper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/26/2011
10/26/2011 10/26/2011 10/26/2011 10/26/2011
11/01/2011

# Docket Text
1 COMPLAINT against Federal Bureau of Investigation, United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 465401020156)Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(rdz) (rdz). (Entered: 10/27/2011)
SUMMONS ISSUED as to Federal Bureau of Investigation, United States Department of Justice. (rdz) (Entered: 10/27/2011)
CASE REFERRED TO Judge William H. Pauley as possibly related to 11−cv−6990. (rdz) (Entered: 10/27/2011)
Case Designated ECF. (rdz) (Entered: 10/27/2011)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(rdz) (Entered: 10/27/2011)
3 AFFIDAVIT OF SERVICE of Summons and Complaint. Federal Bureau of Investigation served on 10/27/2011, answer due 11/17/2011. Service was accepted by Henry Felix−General Counsel & Authorized Agent. Document filed by American Civil Liberties Union Foundation; American Civil Liberties Union. (Haddad, Richard)

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11/01/2011 11/01/2011 11/09/2011 11/09/2011 11/09/2011 11/21/2011
11/29/2011
12/05/2011 12/09/2011
01/19/2012 01/27/2012

(Entered: 11/01/2011)
4 AFFIDAVIT OF SERVICE of Summons and Complaint. United States Department of Justice served on 10/27/2011, answer due 11/17/2011. Service was accepted by Steffon Edmonds−Mail Clerk & Authorized Agent. Document filed by American Civil Liberties Union Foundation; American Civil Liberties Union. (Haddad, Richard) (Entered: 11/01/2011)
5 AFFIDAVIT OF SERVICE of Summons and Complaint. Service was accepted by "Jane Doe", Civil Clerk and authorized agent for service of process upon US ATTORNEY for the SDNY. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (Haddad, Richard) (Entered: 11/01/2011)
CASE ACCEPTED AS RELATED. Create association to 1:11−cv−06990−WHP. Notice of Assignment to follow. (pgu) (Entered: 11/09/2011)
6 NOTICE OF CASE ASSIGNMENT to Judge William H. Pauley, III. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 11/09/2011)
Magistrate Judge James L. Cott is so designated. (pgu) (Entered: 11/09/2011)
7 SCHEDULING ORDER: (1) The Government's brief in support of its motion for summary judgment in 11 Civ. 6990 and in support of its motion for partial summary judgment in 11 Civ. 7562 shall be filed by February 1, 2012; (2) The New York Times' brief in support of its motion for summary judgment in 11 Civ. 6990 and the ACLU's brief in support of its motion for partial summary judgment in 11 Civ. 7562 shall be filed by February 24, 2012; Oral Argument set for 4/20/2012 at 11:00 AM before Judge William H. Pauley III. Status Report due by 1/13/2012. (3) The Government's reply shall be filed by March 16, 2012; (4) This Court will hear oral argument on April 20, 2012, at 11:00 a.m.; and (5) The parties in 11 Civ. 7562 shall submit a joint status report to the Court by January 13, 2012 or earlier. (Signed by Judge William H. Pauley, III on 11/18/2011) (ae) (Entered: 11/21/2011)
8 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 11/23/2011 re: I write respectfully to request a one−week extension−from November 28, 2011 to December 5, 2011−of the Government's time to file an answer in the above−referenced case. ENDORSEMENT: Application granted. Federal Bureau of Investigation answer due 12/5/2011; United States Department of Justice answer due 12/5/2011. (Signed by Judge William H. Pauley, III on 11/29/2011) (lmb) (Entered: 11/29/2011)
9 ANSWER to 1 Complaint. Document filed by Federal Bureau of Investigation, United States Department of Justice.(Clopper, John) (Entered: 12/05/2011)
10 STIPULATION AND ORDER REGARDING FOIA REQUEST: Plaintiffs the American Civil Liberties Union and the American Civil Liberties Union Foundation and defendants Federal Bureau of Investigation and United States Department of Justice hereby stipulate to the following regarding plaintiffs' request made pursuant to the Freedom of Information Act, dated May 31, 2011 and subject to the above−captioned action: The FOIA Request is minted to documents memorializing the following: Legal opinions or memoranda concerning or interpreting Section 215 of the USA Patriot Act; Guidelines for government personnel regarding the use of Section 215; as further set forth in this Stipulation and Order. (Signed by Judge William H. Pauley, III on 12/9/2011) (mro) (Entered: 12/12/2011)
11 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 1/13/2012 re: The Government requests a one−week extension of time to provide an additional report to the Court regarding the status of the Government's searches for responsive records. ENDORSEMENT: Application granted. So ordered. (Signed by Judge William H. Pauley, III on 1/18/2012) (rjm) (Entered: 01/19/2012)
12 ENDORSED LETTER addressed to Judge William H Pauley from John D Clopper dated 1/26/2012 re: Request for the briefing schedule as set forth. ENDORSEMENT: Application granted. The proposed schedule is adopted. (NY Times and ACLUS Cross Motions due by 3/9/2012. Governement's Motion due by 2/22/2012. Government Reply due by 4/6/2012.) (Signed by Judge William H. Pauley, III on 1/27/2012) (cd) (Entered: 01/30/2012)

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 5 of 15

02/07/2012
02/27/2012 02/27/2012 02/27/2012 02/27/2012 03/06/2012 03/07/2012 03/20/2012
03/20/2012 03/22/2012
03/26/2012 03/26/2012

13 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 2/1/2012 re: I write respectfully to inform the Court of an error in the Government's January 26, 2012 letter requesting an extension of the briefing schedule in these related cases. I respectfully request that the Court approve the corrected dates, as set forth.ENDORSEMENT: Application granted. The Court adopts the revised scheduled above. ( Cross Motions due by 3/16/2012., Motions due by 2/22/2012., Replies due by 4/6/2012.) (Signed by Judge William H. Pauley, III on 2/6/2012) (lmb) (Entered: 02/07/2012)
14 MOTION for Partial Summary Judgment. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 02/27/2012)
15 MEMORANDUM OF LAW in Support re: 14 MOTION for Partial Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 02/27/2012)
16 DECLARATION of Mark A. Bradley in Support re: 14 MOTION for Partial Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 02/27/2012)
17 NOTICE of Filing of Classified Document re: 14 MOTION for Partial Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 02/27/2012)
18 ENDORSED LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated 3/2/201 re: counsel writes to request permission to file a corrected copy of the Unclassified Declaration of Mark A. Bradley on ECF. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 3/5/2012) (djc) Modified on 3/14/2012 (djc). (Entered: 03/06/2012)
19 DECLARATION of Mark A. Bradley (Corrected) in Support re: 14 MOTION for Partial Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 03/07/2012)
20 ENDORSED LETTER addressed to Judge William H. Pauley, III from Emily Daughtry dated 3/14/12 re: Counsel writes to request an extension of the Federal Bureau of Investigation's time to complete its processing of documents responsive to plaintiff American Civil Liberties Union's FOIA request in the above−referenced case, with a second interim production to be made on 4/15/12 and a final production to be made on 5/15/12. ENDORSEMENT: Application granted. So ordered. (Signed by Judge William H. Pauley, III on 3/19/2012) (mro) (Entered: 03/20/2012)
21 ENDORSED LETTER addressed to Judge William H. Pauley, III from Alexander A. Abdo dated 3/16/12 re: Counsel requests a five day extension, from 3/21/12 to 3/26/12, for plaintiffs to file their briefs in support of their cross−motions for summary judgment. ENDORSEMENT: Application granted. So ordered. (Signed by Judge William H. Pauley, III on 3/19/2012) (mro) (Entered: 03/20/2012)
22 ENDORSED LETTER: addressed to Judge William H. Pauley from John D. Clopper and Emily E. Daughtry dated 3/22/2012 re: Counsel writes to clarify that, subject to the Court's approval, the parties have agreed that the Government's reply brief in the above referenced cases would be due on Monday, April 16, 2012, not Friday, April 13, 2012. ENDORSEMENT: Application Granted. So Ordered., ( Replies due by 4/16/2012.) (Signed by Judge William H. Pauley, III on 3/22/2012) (js) (Entered: 03/23/2012)
23 CROSS MOTION for Partial Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Haddad, Richard) (Entered: 03/26/2012)
24 MEMORANDUM OF LAW in Support re: 23 CROSS MOTION for Partial Summary Judgment., 14 MOTION for Partial Summary Judgment. Memorandum of Law in Support of Plaintiffs' Cross−Motion for Partial Summary Judgment and in Opposition to the Government's Motion for Partial Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Haddad, Richard) (Entered: 03/26/2012)

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 6 of 15

04/17/2012 04/17/2012 04/23/2012 04/23/2012 05/07/2012 05/07/2012 05/09/2012
05/17/2012
06/19/2012 07/09/2012 07/11/2012
07/25/2012

25 SCHEDULING ORDER: Oral argument is rescheduled to May 4, 2012 at 10:30 a.m. (Signed by Judge William H. Pauley, III on 4/16/2012) (mro) (Entered: 04/17/2012)
26 ENDORSED LETTER addressed to Judge William H. Pauley III from John D. Clopper and Emily Daughtry dated 4/12/12 re: Counsel requests a one week extension, from 4/16/12 to 4/23/12, for the Government to file its reply brief. ENDORSEMENT: Application granted. So ordered. ( Replies due by 4/23/2012.) (Signed by Judge William H. Pauley, III on 4/16/2012) (mro) (Entered: 04/17/2012)
27 REPLY MEMORANDUM OF LAW in Support re: 14 MOTION for Partial Summary Judgment.. Document filed by United States Department of Justice. (Clopper, John) (Entered: 04/23/2012)
28 REPLY AFFIDAVIT of Mark Bradley in Support re: 14 MOTION for Partial Summary Judgment.. Document filed by United States Department of Justice. (Clopper, John) (Entered: 04/23/2012)
29 NOTICE of Withdrawal of Richard I. Haddad. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Haddad, Richard) (Entered: 05/07/2012)
30 NOTICE OF APPEARANCE by Stuart Andrew Youngs on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Youngs, Stuart) (Entered: 05/07/2012)
Letter addressed to Judge William H. Pauley from Emily Daughtry dated 5/8/2012 re: I write respectfully to respond to the Court's request, made at oral argument on May 4, 2012, that the Government submit a letter to the Court providing information as to whether there are written policies regarding the referral of classified information located in response to Freedom of Information Act ("FOIA") requests to the Department of Justice's Department Review Committee ("DRC"), and the subsequent withdrawal of such referrals from the DRC at the onset of FOIA litigation. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Original filed in 11cv6990 as document #25.)(lmb) (Entered: 05/09/2012)
31 MEMORANDUM AND ORDER: For the foregoing reasons, the New York Times' motion for summary judgment and the ACLU's motion for partial summary judgment are denied. The Government's motions for summary judgment in the New York Times action and for partial summary judgment in the ACLU action are granted.The Clerk of the Court is directed to file this Memorandum & Order in both 11 Civ. 6990 and 11 Civ. 7562. The Clerk of the Court is further directed to terminate all pending motions in 11 Civ. 6990 and mark that case closed, and to terminate the motions pending at ECF Nos. 14 and 23 in 11 Civ. 7562.. (Signed by Judge William H. Pauley, III on 5/17/2012) (js) (Entered: 05/17/2012)
32 SCHEDULING ORDER: The parties are directed to appear for a Status Conference set for 7/9/2012 at 11:00 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 6/18/2012) (djc) (Entered: 06/19/2012)
Minute Entry for proceedings held before Judge William H. Pauley, III: Status Conference held on 7/9/2012 at 11:00 a.m. (ja) (Entered: 09/06/2012)
33 SCHEDULING ORDER: Counsel for the parties having appeared for a conference on July 9,2012, the following schedule is established on consent: The parties shall submit a proposed case management schedule to the Court by July 20,2012; The parties shall submit a joint status report to the Court by September 27,2012; and The parties are directed to appear for a status conference on October 5, 2012 at 10:00 a.m. SO ORDERED.Status Conference set for 10/5/2012 at 10:00 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 7/10/2012) (ama) (Entered: 07/11/2012)
34 ENDORSED LETTER addressed to Judge William H. Pauley from John D. Clopper dated 7/20/2012 re: On behalf of both parties to propose a schedule for the Government to provide certain information to the American Civil Liberties Union("ACLU") regarding certain documents withheld by the Government pursuant to various exemptions of the Freedom of Information Act ("FOIA") in the above−referenced case. ENDORSEMENT: Application Granted. The Proposed schedule is adopted. SO ORDERED. (Signed by Judge William H. Pauley, III on

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 7 of 15

10/05/2012 10/05/2012 11/14/2012 11/30/2012 12/03/2012 01/24/2013
02/04/2013

7/24/2012) (ama) (Entered: 07/25/2012)
35 ENDORSED LETTER addressed to Judge William H. Pauley, III from Stuart A. Youngs dated 9/27/2012 re: We write on behalf of both parties pursuant to Your Honor's July 10, 2012 scheduling order to submit a joint status report on the above−captioned matter. In light of the following, we also write to respectfully request a one−month adjournment of the parties' status conference that is currently scheduled for October 5, 2012 at 10:00 a.m. ENDORSEMENT: Application granted. The Conference is rescheduled from October 5, 2012 to November 9, 2012 at 12:00 p.m. (Signed by Judge William H. Pauley, III on 10/4/2012) (djc) Modified on 10/5/2012 (djc). (Entered: 10/05/2012)
Set/Reset Hearings: Status Conference set for 11/9/2012 at 12:00 PM before Judge William H. Pauley III. (djc) (Entered: 10/05/2012)
36 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 11/07/2012 re: I write respectfully On behalf of all parties to request an adjournment of the status conference currently scheduled tor Friday, November 9, 2012. Accordingly, the parties respectfully request that the Court reschedule the conference for Friday, November 30, 2012. ENDORSEMENT: Application Granted. The Conference is rescheduled to November 30, 2012 at 10:00 a.m. SO ORDERED., ( Status Conference set for 11/30/2012 at 10:00 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 11/14/2012) (ama) (Entered: 11/14/2012)
Minute Entry for proceedings held before Judge William H. Pauley, III: Status Conference held on 11/30/2012. (mro) (Entered: 01/15/2013)
37 SCHEDULING ORDER: The following schedule is established on consent. Defendants shall serve and file their motion for summary judgment by January 18, 2013; Plaintiffs shall serve and file their motion for summary judgment and their opposition to Defendants' motion by February 8, 2013; Defendants shall serve and file their opposition to Plaintiffs' motion and any reply by March 1, 2013; Plaintiffs shall serve and file any reply by March 15, 2013; and Motions due by 1/18/2013. Motions due by 2/8/2013. Responses due by 3/1/2013. Replies due by 3/15/2013. Oral Argument set for 4/12/2013 at 11:00 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 11/30/2012) (ja) (Entered: 12/03/2012)
38 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper and Emily Daughtry dated 1/16/2013 re: Defense counsels write to respectfully request a two−week extension from January 18, 2013 to February 1, 2013 for the Government to file its motion for summary judgment in the above−referenced case.The Government's brief in support of its motion for summary judgment shall be filed by February 1, 2013; The ACLU's brief in opposition to Government's motion and in support of its cross−motion for summary judgment shall be filed by March 1, 2013; The ACLU's reply brief shall be filed by April 5, 2013. The Government's reply in support of its motion for summary judgment and in opposition to the ACLU's cross−motion shall be filed by March 22, 2013; ENDORSEMENT: Application granted. The proposed revised schedule is adopted. This Court will hear oral argument on April 26, 2013 at 12:00 p.m. ( Responses due by 3/1/2013, Replies due by 2/22/2013.), ( Oral Argument set for 4/26/2013 at 12:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 1/24/2013) (ago) (Entered: 01/24/2013)
39 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper and Emily Daughtry dated 1/30/2013 re: We write to request an additional one−week extension − from February 1, 2013 to February 8, 2013 − for the Government to file its motion for summary judgment in this case. If the Court grants the Government's request, the new schedule will be as follows: (1) The Government's brief in support of its motion for summary judgment shall befiled by February 8, 2013; (2) The ACLU's brief in opposition to the Government's motion and in support of its cross−motion for summary judgment shall be filed by March 8, 2013; (3) The Government's reply in support of its motion for summary judgment and in opposition to the ACLU's cross−motion shall be filed by March 22, 2013; (4) The ACLU's reply brief shall be filed by April 5, 2013. ENDORSEMENT: Application granted. The proposed revised schedule is adopted. (Responses due by 3/8/2013, Replies due by

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 8 of 15

02/08/2013 02/08/2013 02/08/2013 02/08/2013 02/08/2013 02/08/2013 02/08/2013 02/08/2013 02/22/2013 03/07/2013
03/12/2013
03/12/2013 03/18/2013

4/5/2013.) (Signed by Judge William H. Pauley, III on 2/4/2013) (ft) (Entered: 02/04/2013)
40 MOTION for Summary Judgment. Document filed by Federal Bureau of Investigation, United States Department of Justice. Responses due by 3/8/2013(Clopper, John) (Entered: 02/08/2013)
41 MEMORANDUM OF LAW in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 02/08/2013)
42 NOTICE of Classified Filing re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 02/08/2013)
43 DECLARATION of Mark Bradley in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 02/08/2013)
44 DECLARATION of Vanessa Brinkmann in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 02/08/2013)
45 DECLARATION of Emily E. Daughtry in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 02/08/2013)
46 DECLARATION of Paul P. Colborn in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 02/08/2013)
47 DECLARATION of David Hardy in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 02/08/2013)
48 NOTICE of Withdrawal Of Stuart A. Youngs. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Youngs, Stuart) (Entered: 02/22/2013)
49 ENDORSED LETTER addressed to Judge William H. Pauley III from Charles S. Sims, Esq. dated 2/25/2013 re: Plaintiffs respectfully request an extension of the briefing schedule. The Plaintiffs require additional time to complete their briefing due to the withdrawal of Stuart Youngs. Plaintiffs therefore request an extension as follows: (1) Plaintiffs' cross−motion for summary judgment and opposition to Defendants' motion for summary judgment shall be filed by 4/5/2013. (2) Defendants' opposition to Plaintiffs' cross−motion, and any replyin support of its motion for summary judgment, shall be filed by 4/26/2013. (3)Plaintiffs' reply brief shall be filed by 5/17/2013.ENDORSEMENT: Application granted. The proposed revised schedule is adopted. Oral argument is rescheduled to 5/31/2013 at 2:00 p.m. (Signed by Judge William H. Pauley, III on 3/7/2013) (sac) (Entered: 03/07/2013)
50 ENDORSED LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated 3/7/2013 re: We write respectfully to request leave to file the Supplemental Declaration of Mark A. Bradley (the "Supplemental Bradley Declaration"), dated March 7, 2013, in support of the Government's motion for summary judgment in the above−referenced case, filed on February 8, 2013. ENDORSEMENT: Application granted. So ordered. (Signed by Judge William H. Pauley, III on 3/12/2013) (rjm) Modified on 3/12/2013 (rjm). (Entered: 03/12/2013)
51 DECLARATION of Mark A. Bradley (Supplemental) in Support re: 40 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 03/12/2013)
52 MEMO ENDORSEMENT on NOTICE OF WITHDRAWAL OF STUART A. YOUNGS. Please withdraw the appearance of Stuart A Youngs as counsel of record for Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation. Plaintiffs will continue to be represented by other attorneys at Proskauer Rose LLP who have appearances on file. ENDORSEMENT: So ordered. Attorney

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 9 of 15

04/12/2013
04/24/2013
04/24/2013 04/26/2013 04/26/2013 04/26/2013 05/10/2013 05/10/2013 05/10/2013 05/22/2013
06/10/2013

Stuart Andrew Youngs terminated. (Signed by Judge William H. Pauley, III on 3/18/2013). (rjm) (Entered: 03/18/2013)
53 ENDORSED LETTER addressed to Judge William H. Pauley, III from Charles S. Sims dated 3/29/2013 re: Plaintiffs request an extension of the briefing schedule: Plaintiffs' cross−motion for summary judgment and opposition to Defendants' motion for summary judgment shall be filed by May 3, 2013. Defendants' opposition to Plaintiffs' cross−motion, and any reply in support of its motion for summary judgment, shall be filed by May 23, 2013. Plaintiffs' reply brief shall be filed by June 7, 2013. ENDORSEMENT: Application granted. The proposed revised schedule is adopted. Oral argument is rescheduled to June 21, 2013 at 12:15 p.m. (Oral Argument set for 6/21/2013 at 12:15 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 4/12/2013) (sac) Modified on 4/15/2013 (sac). (Entered: 04/12/2013)
54 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 4/22/2013 re: We write respectfully to request leave to file a supplemental declaration and index and limited additional briefing, no later than this Friday, April 26, 2013, in support of the Government's motion for summary judgment in the above−referenced case. I have spoken with counsel for the ACLU, who consents to this request, provided that the ACLU's due date for its brief be extended by one week, to May 10, 2013 (with the caveat that the ACLU may seek a short additional extension, depending on the nature of the Government's briefing). ENDORSEMENT: Application granted. So ordered. (Signed by Judge William H. Pauley, III on 4/24/2013). (rjm) (Entered: 04/24/2013)
Set/Reset Deadlines: Brief due by 5/10/2013. (rjm) (Entered: 04/24/2013)
55 DECLARATION of Mark A. Bradley in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C)(Clopper, John) (Entered: 04/26/2013)
56 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 04/26/2013)
57 NOTICE of Supplemental Classified Filing re: 40 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 04/26/2013)
58 CROSS MOTION for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Sims, Charles) (Entered: 05/10/2013)
59 MEMORANDUM OF LAW in Opposition re: 58 CROSS MOTION for Summary Judgment., 40 MOTION for Summary Judgment. Plaintiffs' Memorandum of Law In Support of Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Sims, Charles) (Entered: 05/10/2013)
60 DECLARATION of Charles S. Sims in Opposition re: 40 MOTION for Summary Judgment.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit 1−2)(Sims, Charles) (Entered: 05/10/2013)
61 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 5/21/2013 re: We write respectfully to request a three−week extension−from May 23, 2013 to June 13, 2013−for the Government to file its opposition to the ACLU's cross−motion for summary judgment in the above−referenced case. ENDORSEMENT: Application granted. Oral argument is rescheduled to July 11, 2013 at 10 a.m.. SO ORDERED. ( Responses due by 6/13/2013, Replies due by 6/13/2013.), ( Oral Argument set for 7/11/2013 at 10:00 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 5/22/2013) (rdz) (Entered: 05/23/2013)
62 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 6/7/2013 re: We write respectfully in regard to the above−referenced

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 10 of 15

07/22/2013
07/31/2013 07/31/2013 07/31/2013 08/02/2013
08/11/2013 08/11/2013 08/11/2013 08/11/2013

case brought pursuant to the Freedom of Information Act ("FOIA") to request that the Court hold the parties' cross−motions for summary judgment in abeyance while the Government assesses the effect, if any, of certain recent events on this case. The Government proposes that the parties file a status report with the Court within 30 days. ENDORSEMENT: Application granted. The parties are directed to submit a status report within 30 days. So ordered. (Signed by Judge William H. Pauley, III on 6/7/2013). (rjm) (Entered: 06/10/2013)
63 SCHEDULING ORDER: On June 10, 2013, this Court agreed to hold the parties' motions for summary judgment in abeyance pending Defendant's assessment of the effect on recent events on this action. Attached to this Order is a joint letter from the parties stating their respective positions on the appropriate next steps in this case. The Court will address this issue at the conference scheduled for July 25, 2013 at 12:00 p.m. before Judge William H. Pauley III in the related matter of ACLU v. Clapper, 13 Civ. 3994. (Signed by Judge William H. Pauley, III on 7/19/2013) (mro) (Entered: 07/22/2013)
64 NOTICE of Classified Filing. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 07/31/2013)
65 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/25/2013 before Judge William H. Pauley, III. Court Reporter/Transcriber: Tara Jones, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/6/2013. Release of Transcript Restriction set for 11/1/2013.(Rodriguez, Somari) (Entered: 07/31/2013)
66 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7/25/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 07/31/2013)
67 ORDER: The Court therefore adopts the following schedule: 1. The Government's reply in support of its motion for summary judgment and its opposition to the ACLU's motion for summary judgment is due September 10, 2013; 2. The ACLU's reply brief is due October 3, 2013; 3. The Court will hear oral argument on October 11, 2013 at 3:00 p.m. In the event the Government declassifies additional documents at issue in this litigation, this Court directs the Government to provide copies to the Court and the ACLU forthwith. (Responses due by 9/10/2013 Replies due by 10/3/2013. Oral Argument set for 10/11/2013 at 03:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 8/2/2013) (mro) (Entered: 08/02/2013)
68 LETTER addressed to Judge William H. Pauley III from John D. Clopper and Emily Daughtry dated 7/25/2013 re: Counsel writes to inform the Court that the Government learned of the ACLU's July 16, 2013, letter to the Court yesterday evening after the close of business. Document filed by Federal Bureau of Investigation, United States Department of Justice.(ft) Modified on 8/16/2013 (ft). (mro). (Entered: 08/16/2013)
69 LETTER addressed to Judge William H. Pauley III from John D. Clopper and Emily Daughtry dated 7/26/2013 re: Counsel writes in response to the ACLU's letter of July 16, 2013. Document filed by Federal Bureau of Investigation, United States Department of Justice.(ft) (mro). (Entered: 08/16/2013)
70 LETTER addressed to Judge William H. Pauley III from Jameel Jafer dated 7/29/2013 re: The Court should require the government to conclude its declassification review of the withheld FISC opinions by August 12 and its review of the remainder of the documents by September 12. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(ft) (Entered: 08/16/2013)
73 LETTER addressed to Judge William H. Pauley III from Jacqueline Coleman Snead dated 7/16/2013 re: Plaintiffs write to call the Court's attention to an order recently issued by the U.S. District Court for the District of Columbia in another FOIA suit. Document filed by American Civil Liberties Union, American Civil Liberties Union

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 11 of 15

08/16/2013
08/19/2013
09/12/2013 10/01/2013 11/25/2013 11/26/2013 11/26/2013 12/06/2013 12/17/2013 01/31/2014 03/11/2014
03/12/2014

Foundation.(ft) (Entered: 08/19/2013)
71 ORDER withdrawing 40 Motion for Summary Judgment; withdrawing 58 Motion for Summary Judgment. The parties' summary judgment motions are withdrawn. The Clerk of Court is directed to strike the motions pending at docket entries 40 & 58. The Government will review the Foreign Intelligence Surveillance Court (FISC) Opinions at issue and release any segreable information not exempt under FOIA by September 10, 2013. The Government will review a second tranche of documents and release any segreable information not exempt under FOIA by October 10, 2013. The Government will review the remaining documents at issue, excluding the FISC orders in the final row of the Government's Vaughn index, and release any segreable information not exempt under FOIA by 10/31/2013. The parties will submit a status report to the Court by 11/8/2013. (Signed by Judge William H. Pauley, III on 8/16/2013) (tro) (Entered: 08/16/2013)
72 LETTER addressed to Judge William H. Pauley, III from Emily Daughtry dated 8/6/13 re: In accordance with the Court's August 2, 2013, Order, the Government is providing the Court with copies of two documents that are responsive to the ACLU's FOIA request in the above−referenced case, as well as associated cover letters to Congress. They were provided to the ACLU on July 31, 2013. The Government has completed its declassification review of these two documents. (mro) (Entered: 08/19/2013)
74 LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated September 12, 2013 re: Order of August 2, 2013. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 09/12/2013)
75 STANDING ORDER M10−468: Stay of Certain Civil Cases Pending the Restoration of Department of Justice Funding. (Signed by Judge Loretta A. Preska on 10/1/2013) ***Original Standing Order docketed in case no. 1:13−mc−00334−LAP, document no. 2 on 10/1/2013.***(tro) (Entered: 10/01/2013)
76 LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated November 25, 2013 re: Status Report. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 11/25/2013)
77 MEMO ENDORSEMENT on re: 76 Letter filed by United States Department of Justice. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 11/26/2013) (tro) (Entered: 11/26/2013)
78 LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated November 26, 2013 re: Order of August 2, 2013. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 11/26/2013)
79 LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated December 6, 2013 re: status report. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 12/06/2013)
80 MEMO ENDORSEMENT on re: 79 Letter filed by United States Department of Justice. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 12/17/2013) (mro) (Entered: 12/17/2013)
81 LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated January 31, 2014 re: status report. Document filed by Federal Bureau of Investigation, United States Department of Justice.(Daughtry, Emily) (Entered: 01/31/2014)
82 ORDER: The following schedule is established on consent: (1) The Government will file its motion for summary judgment by April 4, 2014; (2) The ACLU will file its opposition to the Government's motion and its own motion for summary judgment by May 2, 2014; (3) The Government will file its reply and opposition brief by May 30, 2014; (4) The ACLU will file its reply brief by June 13, 2014; (5) This Court will hear oral argument on June 20, 2014 at 2:00 p.m., ( Motions due by 5/2/2014., Responses due by 5/30/2014,, Replies due by 6/13/2014.), ( Oral Argument set for 6/20/2014 at 02:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 3/11/2014) (lmb) (Entered: 03/11/2014)
83 NOTICE OF APPEARANCE by Patrick Christopher Toomey on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 03/12/2014)

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 12 of 15

04/04/2014 04/04/2014 04/04/2014 04/04/2014 04/04/2014 05/01/2014 05/02/2014 05/02/2014
05/02/2014
05/20/2014 05/23/2014 05/30/2014 05/30/2014

84 MOTION for Summary Judgment. Document filed by Federal Bureau of Investigation, United States Department of Justice. Responses due by 5/2/2014(Clopper, John) (Entered: 04/04/2014)
85 MEMORANDUM OF LAW in Support re: 84 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 04/04/2014)
86 DECLARATION of John D. Clopper in Support re: 84 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 04/04/2014)
87 DECLARATION of Jennifer L. Hudson in Support re: 84 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Exhibit Vaughn Index)(Clopper, John) (Entered: 04/04/2014)
88 NOTICE of Classified Filing re: 84 MOTION for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 04/04/2014)
89 NOTICE OF APPEARANCE by Brett Max Kaufman on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Kaufman, Brett) (Entered: 05/01/2014)
90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Sims, Charles) (Entered: 05/02/2014)
91 MEMORANDUM OF LAW in Support re: 90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment., 84 MOTION for Summary Judgment. Plaintiffs' Memorandum of Law in Support of Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Sims, Charles) (Entered: 05/02/2014)
92 DECLARATION of Charles S. Sims in Support re: 90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit 1 to Sims Declaration, # 2 Exhibit 2 to Sims Declaration, # 3 Exhibit 3 to Sims Declaration, # 4 Exhibit 4 to Sims Declaration, # 5 Exhibit 5 to Sims Declaration)(Sims, Charles) (Entered: 05/02/2014)
93 LETTER MOTION to Adjourn Conference addressed to Judge William H. Pauley, III from Emily E. Daughtry dated May 20, 2014. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 05/20/2014)
94 ORDER granting 93 Letter Motion to Adjourn Conference. Application granted. The argument is adjourned to 7/18/2014 at 12 pm. Oral Argument set for 7/28/2014 at 12:00 PM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 5/23/2014) (cd) (Entered: 05/23/2014)
95 MEMORANDUM OF LAW in Opposition re: 90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment. . Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 05/30/2014)
96 DECLARATION of Jennifer L. Hudson in Opposition re: 90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 05/30/2014)

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 13 of 15

05/30/2014 06/13/2014 06/13/2014
06/13/2014 07/09/2014 07/11/2014 07/21/2014 07/22/2014 08/13/2014
08/13/2014
08/15/2014

97 DECLARATION of Diane M. Janosek in Opposition re: 90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment.. Document filed by Federal Bureau of Investigation, United States Department of Justice. (Clopper, John) (Entered: 05/30/2014)
98 REPLY MEMORANDUM OF LAW in Support re: 90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment. . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Sims, Charles) (Entered: 06/13/2014)
99 DECLARATION of Charles S. Sims in Support re: 90 CROSS MOTION for Summary Judgment Notice of Plaintiffs' Cross−Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit 1 to Sims Declaration, # 2 Exhibit s 2−A, 2−B to Sims Declaration, # 3 Exhibit 3 to Sims Declaration, # 4 Exhibit 4 to Sims Declaration, # 5 Exhibit 5 to Sims Declaration, # 6 Exhibit 6 to Sims Declaration, # 7 Exhibit 7 to Sims Declaration, # 8 Exhibit 8 to Sims Declaration)(Sims, Charles) (Entered: 06/13/2014)
100 LETTER addressed to Judge William H. Pauley, III from Charles S. Sims dated 6/13/14 re: Pursuant to Rule III(F). Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Sims, Charles) (Entered: 06/13/2014)
101 LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated July 9, 2014 re: info regarding supplemental release. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit BR 09−09, # 2 Exhibit BR 09−15, # 3 Exhibit BR 09−19)(Daughtry, Emily) (Entered: 07/09/2014)
102 LETTER addressed to Judge William H. Pauley, III from Patrick Toomey dated July 11, 2014 re: supplemental release of responsive records. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 07/11/2014)
103 LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated July 21, 2014 re: June 2013 FISC Opinion. Document filed by United States Department of Justice. (Attachments: # 1 June 2013 FISC Opinion)(Daughtry, Emily) (Entered: 07/21/2014)
104 LETTER addressed to Judge William H. Pauley, III from Patrick Toomey dated July 22, 2014 re: June 2013 FISC Opinion. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 07/22/2014)
105 TRANSCRIPT of Proceedings re: ARGUMENT held on 7/18/2014 before Judge William H. Pauley, III. Court Reporter/Transcriber: Kristen Carannante, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014.(McGuirk, Kelly) (Entered: 08/13/2014)
106 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 7/18/2014 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/13/2014)
107 LETTER addressed to Judge William H. Pauley, III from John Clopper dated August 15, 2014 re: Supplemental Authority. Document filed by Federal Bureau of Investigation, United States Department of Justice.(Clopper, John) (Entered: 08/15/2014)

Case: 1:11-cv-7562 As of: 11/06/2017 01:11 AM EST 14 of 15

08/19/2014 09/05/2014 10/06/2014
10/06/2014 10/16/2014 10/17/2014 10/24/2014 10/24/2014 10/24/2014 10/29/2014 03/31/2015
03/31/2015 03/31/2015

108 LETTER addressed to Judge William H. Pauley, III from Patrick Toomey dated August 19, 2014 re: supplemental authority. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 08/19/2014)
109 NOTICE of of Withdrawal of Brett Max Kaufman. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Kaufman, Brett) (Entered: 09/05/2014)
110 MEMORANDUM AND ORDER. For the reasons in this Memorandum and Order, the Government's motion for summary judgment is granted and the ACLU's motion is denied with respect to the Government's Glomar response for responsive documents, if any, relating solely to the use of section 215 for bulk collection of information other than telephony metadata. The Government is directed to submit the remaining documents for in camera review by October 17, 2014. The Government is invited to make a further submission either reconsidering its determinations and proposing redactions or providing further support as to why these documents should be withheld in full. Any ruling on the remainder of the summary judgment motions is deferred pending this Court's review. Granting in part 84 Motion for Summary Judgment; Denying in part 90 Motion for Summary Judgment. (Signed by Judge William H. Pauley, III on 10/6/2014) (rjm) (Entered: 10/06/2014)
119 INTERNET CITATION NOTE: Material from decision with Internet citation re: 110 Order on Motion for Summary Judgment. (Attachments: # 1 internet citation, # 2 internet citation, # 3 internet citation) (yv) (Entered: 12/29/2015)
111 LETTER MOTION for Extension of Time addressed to Judge William H. Pauley, III from John Clopper dated October 16, 2014. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 10/16/2014)
112 ORDER granting 111 Letter Motion for Extension of Time. Application granted. (Signed by Judge William H. Pauley, III on 10/17/2014) (mro) (Entered: 10/20/2014)
113 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 84 MOTION for Summary Judgment. . Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 10/24/2014)
114 NOTICE of Classified Filing. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 10/24/2014)
115 DECLARATION of Diane M. Janosek in Support re: 84 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 10/24/2014)
116 RESPONSE in Opposition to Motion re: 84 MOTION for Summary Judgment. and Defendants' Supplemental Memorandum of Law. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 10/29/2014)
117 MEMORANDUM & ORDER: For the foregoing reasons, this Court concludes that the Government may withhold the documents listed on its Vaughn index and any further information about them, under Exemptions 1 and 3 of FOIA. Accordingly, the remainder of the Government's summary judgment motion is granted and the ACLU's motion for summary judgment is denied. The Clerk of the Court is directed to terminate all pending motions and mark this case as closed. (Signed by Judge William H. Pauley, III on 3/31/2015) (mro) (Entered: 03/31/2015)
Transmission to Judgments and Orders Clerk. Transmitted re: 117 Order,,, to the Judgments and Orders Clerk. (mro) (Entered: 03/31/2015)
118 CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memorandum & Order dated March 31, 2015, for the foregoing reasons, this Court concludes that the Government may withhold the documents listed on its Vaughn index and any further information about them, under Exemptions 1 and 3 of FOIA. Accordingly, the remainder of the Government's summary judgment motion is granted and the ACLU's motion for summary judgment is denied; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 3/31/2015) (Attachments: # 1 Right to Appeal Attachment part 1, # 2 Right to Appeal

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03/31/2015

Attachment part 2)(mro) (Entered: 03/31/2015) Terminate Transcript Deadlines (mro) (Entered: 03/31/2015)