Case 1:15-cv-05740-ER Document 1 Filed 07/22/15 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
X THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE,
Plaintiffs,
-against-
UNITED STATES DEPARTMENT OF THE TREASURY,
Defendant.
------------------------------------------~X

COMPLAINT No. 15-cv-5740

Plaintiffs THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, by their undersigned attorneys, allege for their Complaint:
1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), to order the production of agency records from the Department of the Treasury ("Treasury") in response to a request properly made by Plaintiffs The New York Times Company and Charlie Savage.
PARTIES 2. Plaintiff The New York Times Company publishes The New York Times newspaper. The New York Times Company is headquartered in this judicial district at 620 Eighth Avenue, New York, New York. 3. Plaintiff Charlie Savage is a reporter for The New York Times. 4. Defendant the Treasury is an agency of the federal government. Among its many functions, it regulates the activities of U.S. citizens and corporations wishing to do business or engage in other transactions with individuals and entities that commit, threaten to
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commit, or support terrorism. Treasury has possession and control of the records that Plaintiffs seek.
5. One of Treasury's operating units is the Office of Foreign Assets Control ("OFAC"), which administers sanctions programs against those determined to have committed, threatened to commit, or support terrorism.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). 7. Venue is premised on the place of business of Plaintiffs and is proper in this district under 5 U.S.C. § 552(a)(4)(B). 8. Plaintiffs have exhausted all administrative remedies available in regards to the request at issue. Treasury denied Plaintiffs' timely filed administrative appeal in its entirety.
FACTS 9. OFAC administers and enforces a range of sanctions programs against individuals and entities to accomplish various foreign policy and national security goals. Among these programs are Counter Terrorism Sanctions aimed at those determined to have committed, threatened to commit, or supported terrorism. 10. Following the terrorist attacks of September 11, 2001, the Government established an extensive network of surveillance programs, often without a warrant, intended to monitor and uncover potential terrorist threats.
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11. In 2008, some portions of the Government's surveillance programs, including programs administered by the National Security Agency, were incorporated into the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et. seq.
12. FISA includes a provision requiring that "Whenever the Government intends to enter into evidence or otherwise use or disclose in any ... proceeding on or before any ... department ... against an aggrieved person, any information obtained or derived from electronic surveillance of that aggrieved person ... the Government shall, prior to the ... proceeding ... notify the aggrieved person". 50 U.S.C. § 1806(c).
13. Whether or not FISA's notice provision applied to OFAC terrorism sanctions determinations was the subject of intense debate within Treasury and the Department of Justice.
14. On September 30, 2014, Mr. Savage submitted a FOIA request (the "Request") to Treasury, seeking disclosure of "documents showing the legal conclusions accepted by the Treasury Department as the governing legal protocol for under what circumstances, if any, and at what stage of the process, FISA's notice provision applies to the Office of Foreign Assets Control sanctioning decisions and challenges to them."
15. On April 13, 2015, Treasury denied the Request. Treasury stated that OFAC had located one responsive document and that OFAC determined that this document was exempt from disclosure under 5 U.S.C. § 552(b)(5) because it was protected by the attorneyclient privilege and the deliberative process privilege.
16. On April 16, 2015, Plaintiffs timely filed an administrative appeal with Treasury.
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17. On May 21, 2015, Treasury denied the administrative appeal in its entirety, arguing that the responsive document did not constitute the agency's "working law," which ordinarily must be disclosed.
COUNT 18. Plaintiffs repeat, reallege, and reincorporate the allegations in the foregoing paragraphs as though fully set forth herein. 19. Treasury is an agency subject to FOIA and must therefore release in response to a FOIA request any disclosable records in its possession at the time of the request and provide a lawful reason for withholding any other materials as to which it is claiming an exemption. 20. Plaintiffs have exhausted all administrative remedies, having filed an administrative appeal, which was denied. 21. There is no lawful basis under FOIA for withholding documents asked for by the Request. 22. Treasury's failure to provide responsive documents violates FOIA. 23. Accordingly, Plaintiffs are entitled to an order compelling Treasury to produce the document sought by the Request.
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REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a. Declare that the documents sought by the Request, as described in the foregoing paragraphs, are public under 5 U.S.C. § 552 and 5 U.S.C. § 552(a) and must be disclosed;
b. Order Treasury to provide those records to Plaintiffs within 20 business days of the Court's order;
c. Award Plaintiffs the costs of this proceeding, including reasonable attorney's fees, as expressly permitted by FOIA; and
d. Grant Plaintiffs such other and further relief as this Court deems just and proper.

Dated: New York, New York July 22, 2015
59101

eremy utne , E q. David . McCraw, Esq. Legal Department The New York Times Company 620 8th Avenue, 18th Floor New York, NY 10018 phone: (212)556-5188 fax: (212) 556-1009 e-mail: jeremy.kutner@nytimes.com Counsel for Plaintiffs
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE,
Plaintiffs,
- against -
UNITED STATES DEPARTMENT OF THE TREASURY,
Defendant.

OPINION AND ORDER 15 Civ. 5740 (ER)

Ramos, D.J.: The New York Times Company and reporter Charlie Savage (together, “the Times”)
bring this suit to challenge the response by the Department of the Treasury (“Treasury”) to a request under the Freedom of Information Act (“FOIA”). Treasury has moved for summary judgment. The Times opposes the motion and seeks an order from the Court directing Treasury to conduct a new search and make available two of its officials for depositions. For the below reasons, Treasury’s motion is GRANTED in part and DENIED in part. Treasury is further directed to make additional submissions detailing the search it already performed, but the Court declines to order a new search or depositions at this time. I. BACKGROUND
A. Factual Background and Prior Proceedings Under the Foreign Intelligence Surveillance Act of 1978 (“FISA”), targets of electronic
surveillance are entitled to notice when the Government intends to use surveillance evidence against them in a legal proceeding. See 50 U.S.C. § 1806(c). On September 30, 2014, the Times submitted to Treasury a request under FOIA (the “Request”) seeking:

[A]ccess to documents showing the legal conclusions accepted by the Treasury Department as the governing legal protocol for under what circumstances, if any, and at what stage of the process, FISA’s notice provision applies to Office of Foreign Assets Control sanctioning decisions and challenges to them.
Declaration of David E. McCraw (“McCraw Decl.”) (Doc. 29), Ex. A (“Request”). The Office
of Foreign Assets Control (“OFAC”) is the unit within Treasury that imposes and administers
economic sanctions against foreign entities suspected of engaging in international terrorism.1
Treasury FOIA Officer Marshall H. Fields, Jr. (“Fields”) responded to the Request on
April 13, 2015 (the “Fields Reply”). See McCraw Decl., Ex. B (“Fields Reply”). He reported
that Treasury had found one thirteen-page memo (the “Memo”) that was “responsive” to the
Request, but that Treasury was withholding the Memo under FOIA Exemption 5, which exempts
from disclosure “inter-agency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). Fields specifically invoked the attorney-client privilege and the deliberative-process
privilege to justify withholding under Exemption 5. Fields Reply at 1.2
The Times appealed on April 16, 2015 (the “Times Appeal”). The Times argued that the
fact that the Memo was deemed “responsive” to a request for “legal conclusions accepted by the
Treasury Department as the governing legal protocol” necessarily meant that the document
1 The request arose from Plaintiff Savage’s reporting that the Obama Administration was internally debating the extent of Treasury’s notice obligations under FISA when it uses warrantless surveillance evidence to designate foreign terrorists. See Charlie Savage, Debate Brews Over Disclosing Warrantless Spying, N.Y. TIMES, Oct. 1, 2014, at A3, available at http://www.nytimes.com/2014/10/01/us/debate-simmers-over-disclosing-warrantlessspying.html. 2 Exemption 5 authorizes agencies to withhold “documents that would be subject to privilege in civil litigation.” Adamowicz v. I.R.S., 552 F. Supp. 2d 355, 361 (S.D.N.Y. 2008). “The deliberative process privilege applies to documents that are predecisional and deliberative. A document is predecisional if it is ‘prepared in order to assist an agency decisionmaker in arriving at his decision’ and deliberative if it is ‘actually related to the process by which policies are formulated.’” N.Y. Times v. U.S. Dep’t of Justice, 101 F. Supp. 3d 310, 318 (S.D.N.Y. 2015) (quoting Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 194 (2d Cir. 2012)).
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contained Treasury’s “effective law and policy,” i.e., Treasury’s “working law,” and thus must be disclosed. See McCraw Decl., Ex. C (“Times Appeal”) at 2–3.3
The Times Appeal was denied on May 21, 2015 by John E. Smith (“J. Smith”), Acting
Director of OFAC, and the instant suit was initiated on July 22, 2015. See McCraw Decl., Ex. D;
Complaint (Doc. 1). Because Treasury represented that the Memo was responsive to the
Request, the Times opted not to challenge the adequacy of Treasury’s search, focusing instead
solely on the question of whether the Memo was properly withheld under Exemption 5. See
Joint Letter (Doc. 13) at 2.
Treasury moved for summary judgment on December 23, 2015. (Doc. 17). In support of
its motion, Treasury submitted a declaration from Bradley T. Smith (“B. Smith”), Chief Counsel
for Foreign Assets Control at Treasury (the “B. Smith Declaration”). See McCraw Decl., Ex. E
(“B. Smith Decl.”) ¶ 1. The B. Smith Declaration explained that the Memo is a “draft
memorandum” and “does not reflect a final legal or policy determination by Treasury,” and thus
was actually not responsive to the “aspect” of the Request seeking “governing legal protocol.”
Id. at ¶ 7. Nevertheless, according to B. Smith, the Memo was deemed responsive under a
“liberal construction” of the Request because the Memo contains “draft legal analysis” of the
specific topic of OFAC’s notice obligations under FISA. Id. The B. Smith Declaration further
states that the Memo was prepared by “certain Treasury attorneys” in advance of a meeting with
3 A document must be disclosed under FOIA if it includes “an opinion or interpretation” that “embodies the agency’s effective law and policy,” in other words, its “working law.” Brennan Ctr., 697 F.3d at 195 (internal quotation marks omitted) (quoting N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). “The reasons for a decision made by an agency” or “a policy actually adopted” constitute “‘the working law of the agency.’” Id. at 196 (quoting Sears, Roebuck, 421 U.S. at 153). The “working law analysis is animated by the affirmative provisions of FOIA,” which generally require disclosure of “final opinions, statements of policy and interpretations which have been adopted by the agency, and instructions to staff that affect a member of the public.” Id. at 200–01 (quoting Sears, Roebuck, 421 U.S. at 153) (internal quotation marks omitted). Neither the attorney-client privilege nor the deliberative-process privilege can be invoked to justify withholding a document that contains an agency’s working law. See N.Y. Times, 101 F. Supp. 3d at 318–19 (citations omitted).
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the Justice Department “to help frame issues subject to ongoing deliberative discussions,” and memorialized only “initial, preliminary advice.” Id. at ¶¶ 15–16. The declaration also states that the Memo does not contain any working law because it “does not have the force and effect of law within Treasury,” and because “the underlying legal analysis and reasoning in the memorandum has not been adopted by Treasury” or “used as a reference document by OFAC personnel.” Id. at ¶ 16.
The Times then moved the Court for permission to take depositions of Fields, J. Smith, and B. Smith to better understand the contours of Treasury’s response. (Doc. 27). In opposition, Treasury submitted additional declarations from Fields and J. Smith. (Docs. 34–36). The declaration from Fields explained that he assigned the Request to subject-matter experts (“SMEs”) within OFAC and the Office of Chief Counsel (Foreign Assets Control) (“OCC”),4 who searched for and produced the Memo, and then recommended that Fields deem the Memo responsive but exempt from disclosure under the attorney-client and deliberative-process privileges. See Declaration of Marshall H. Fields, Jr. (Doc. 35) ¶¶ 10–19. The declaration from J. Smith states that he did not make his own responsiveness determination, but rather only reassessed, and ultimately agreed with, the determination to withhold the Memo under Exemption 5 because it did not contain any working law. See Declaration of John E. Smith (Doc. 36) ¶¶ 10–11.
The Court denied the Times’ request for depositions but ordered Treasury to submit an additional declaration from Fields to describe in further detail his own individual basis for
4 OCC provides “legal services with respect to the implementation, interpretation, and enforcement of economic sanctions programs administered by the Office of Foreign Assets Control (OFAC).” Supplemental Declaration of Bradley T. Smith (Doc. 45) ¶ 2.
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deeming the Memo responsive. See N.Y. Times Co. v. U.S. Dep’t of the Treasury, No. 15 Civ. 5740 (ER), 2016 WL 1651867, at *5 (S.D.N.Y. Apr. 26, 2016).
B. Proceedings Following the Court’s April 26, 2016 Order Treasury submitted the supplemental declaration from Fields on May 13, 2016. See
Supplemental Declaration of Marshall H. Fields, Jr. (“Supp. Fields Decl.”) (Doc. 39). Fields explained that he assigned the Request to OCC because OCC is considered the SME “with respect to records containing legal equities.” Supp. Fields Decl. ¶ 8. Fields further explained that he “relied exclusively on OCC’s determination regarding the responsiveness and privileged nature” of the Memo and did not conduct his own “independent analysis of the responsiveness of the [Memo].” Id. at ¶ 10. “Rather, because of the legal nature of the record, [Fields] relied on the determination of OCC, the SME, that the [Memo] should be treated as responsive….” Id.
The Times submitted its opposition to Treasury’s motion for summary judgment on May 26, 2016, but declined to file its own cross-motion for summary judgment, effectively conceding that there was no basis in the evidentiary record to challenge Treasury’s representations about the deliberative, predecisional nature of the Memo and the resulting withholding of that document. See Memorandum of Law in Opposition (“NYT Opp’n”) (Doc. 42) at 8 (“The Times concedes that without discovery it has no basis for summary judgment as to the Treasury Legal Memo.”). Instead, accepting Treasury’s declaration that it did not locate any document containing “governing legal protocol,” the Times now challenges the adequacy of Treasury’s initial search and seeks an order from the Court directing Treasury to undertake a new search and produce B. Smith and Fields for depositions. Id. at 8–9; Letter Motion (“NYT Letter”) (Doc. 46) at 3.
Treasury objects to this request, arguing first and foremost that the Times both did not include a challenge to the search’s adequacy in its complaint and waived that challenge by
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failing to raise it until opposing Treasury’s summary-judgment motion. See Defendant’s Reply (“Gov. Rep.”) (Doc. 44) at 4–5. Treasury also takes the search adequacy issue head on, briefing it and submitting an additional declaration from B. Smith (the “Supp. Smith Declaration”) to substantiate the adequacy of the search that was performed. See Supplemental Declaration of Bradley T. Smith (“Supp. Smith Decl.”) (Doc. 45); Gov. Rep. at 5–10. II. DISCUSSION
This is an unusual FOIA case that has been stymied by miscommunication. The Times is right to say that the Request was crafted unambiguously to reach only working law, and that Treasury should have explained from the outset its liberal interpretation of the Request and the fact that the Memo did not contain “governing legal protocol.” That explanation from Treasury, while now accepted as true by the Times, came late enough in the litigation process that the Times’ failure to challenge the adequacy of the search up to this point is understandable. On the other hand, the Times cannot claim total surprise by Treasury’s representations in this litigation, given that Treasury has consistently invoked the deliberative-privilege process and expressly denied the applicability of the working law theory on appeal—while it was possible that Treasury was taking an inherently contradictory position (i.e., arguing that a document containing “governing legal protocol” did not contain working law), the Times should have been quicker to challenge the adequacy of a search that turned up only one document that Treasury was insisting to be predecisional and deliberative, and not working law.
All things considered, and assessing the potential prejudice to both sides, the Court in its discretion will consider the Times’ challenge to the search’s adequacy on the merits. Cf. Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001).
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“In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate….” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citations omitted). If “the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” N.Y. Times Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 517 (S.D.N.Y. 2007) (quoting Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998)).
“An agency’s search is adequate when it is ‘reasonably calculated to uncover all relevant documents’ and the agency can ‘demonstrate beyond material doubt that the search was reasonable.’” Nat’l Immigration Project of the Nat. Lawyers Guild v. U.S. Dep’t of Homeland Sec., No. 11 Civ. 3235 (JSR), 2012 WL 6809301, at *3 (S.D.N.Y. Dec. 27, 2012) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “[W]hen a plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA request, the factual question it raises is whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)) (internal quotation marks omitted). “Under this standard, the relevant question ‘is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate’ under the particular circumstances of the case.” Bloomgarden v. U.S. Dep’t of Justice, 10 F. Supp. 3d 146, 152 (D.D.C. 2014) (quoting Weisberg v. U.S. Dept. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
“Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search…are sufficient to sustain the agency’s burden” and “are accorded a presumption of good faith.” Long v. Office of Pers. Mgmt., 692 F.3d 185, 190–91 (2d Cir. 2012) (quoting
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Carney, 19 F.3d at 812) (internal quotation marks omitted). In its submissions, an agency must “identify the searched files and describe at least generally the structure of the agency’s file system,” explain why “further search[es] [are] unlikely to disclose additional relevant information,” establish that “they searched all custodians who were reasonably likely to possess responsive documents,” and set forth “the search terms and the type of search performed.” Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 877 F. Supp. 2d 87, 96 (S.D.N.Y. 2012) (citations and internal quotation marks omitted); see also, e.g., Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (“A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.”); Nat’l Immigration Project, 2012 WL 6809301, at *4 (“An agency’s affidavits or declarations should set forth the search terms and the type of search performed….[and must] supply more than glib government assertions of complete disclosure or retrieval.”) (citations and internal quotation marks omitted).
The Supp. Smith Declaration describes Treasury’s search in response to the Request. It first explains that OFAC’s FOIA office initially assigned the search to OCC plus four other individuals within OFAC—the Director, the Deputy Director, the Associate Director in the Office of Global Targeting, and an Administrative Management Specialist for assistance searching the emails of OFAC’s former Deputy Director. Supp. Smith Decl. ¶ 6. From there, “based on the narrow legal issue raised,” OCC determined that only two OCC attorneys could have records “potentially responsive” to the Request—B. Smith himself, and “one other attorney.” Supp. Smith Decl. ¶ 7. B. Smith conducted a search of his emails, paper files, and
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computer files. Id. at ¶ 8. The other OCC attorney “had been working on FISA issues in [OCC] for several years, and was familiar with the FISA-related records in his possession as well as certain records maintained by [OCC] based on recent searches that he had performed in connection with this work.” Id. at ¶ 9. Accordingly, this other attorney “was able to provide a response to the FOIA request without conducting an additional physical or electronic search of his records,” identifying the Memo as the only “potentially responsive document,” even under a liberal interpretation of the Request. Id. at ¶¶ 9–10. The declaration further represents that OCC “would have been aware of and involved in the drafting” of any documents or “governing legal protocol” regarding the applicability of FISA’s notice provisions to OFAC’s sanctioning decisions. Id. at ¶ 11. Thus, “based on the subject matter” of the Request and OCC’s “familiarity with those in Treasury who had been engaged on the issue,” B. Smith and his colleague determined that no one else in OFAC would have any other potentially responsive documents, nor was B. Smith aware of the existence of any such documents, which he attests he would have been if such documents had existed, “given the important legal questions involved.” Id. at ¶¶ 12–13. Finally, B. Smith reconfirmed that OCC would have determined that no responsive documents existed if the Request had been strictly construed to reach only Treasury’s “governing legal protocol.” Id. at ¶ 15.
In requesting a new search and depositions, the Times does not argue that Treasury’s representations are untruthful or made in bad faith, but only that they are incomplete. NYT Letter at 2. Specifically, the Times questions (i) the other OCC attorney’s failure to conduct an actual search, (ii) the absence of information regarding results of the searches done by the four individual OFAC officials, (iii) the lack of details about the meeting for which the Memo was prepared and whether such deliberations are ongoing, which “could help explain why no further
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documents were turned up,” and (iv) the absence of information regarding “whether OFAC officials took notes or created memos to file or sent a confirming email to memorialize what was said.” Id. at 2–3.
The Court agrees with the Times to the following extent: Treasury’s submissions thus far do not demonstrate bad faith or lack of truthfulness, but there does remain a genuine issue of material fact as to whether the search already completed was adequate. In other words, Treasury’s submissions are insufficiently detailed as they stand, but the Times has not demonstrated a need for a new search or depositions, at least at this stage.
Treasury is thus instructed to submit further affidavits or declarations describing the adequacy of its prior search. See Beltranena v. Clinton, 770 F. Supp. 2d 175, 187 (D.D.C. 2011) (“[W]here—as here—‘an agency’s affidavits regarding its search are deficient, courts generally do not grant discovery but instead direct the agency to supplement its affidavits.’”) (quoting Jarvik v. C.I.A., 741 F. Supp. 2d 106, 122 (D.D.C. 2010)). Specifically, the Court requires more details as to the kinds of information and files housed within OCC, why the choice of custodians was reasonable, why certain record repositories were searched while others were not, and the search terms that were employed. See generally, e.g., Vietnam Veterans of Am. Connecticut Greater Hartford Chapter 120 v. Dep’t of Homeland Sec., 8 F. Supp. 3d 188, 227 (D. Conn. 2014); Nat’l Sec. Counselors v. C.I.A., 960 F. Supp. 2d 101, 152–54 (D.D.C. 2013). Regarding the four specific issues that the Times raises (listed above), the first two go to the adequacy of the search, and Treasury should address these issues in its supplemental submissions.5 But the
5 Treasury argues that an agency official’s preexisting familiarity with the scope and content of records may excuse performance of a new search in response to a FOIA request. See Letter Response (Doc. 47) at 2–3. But even if that were so, here the Court has no specific information about the other OCC attorney’s knowledge, records, or prior searches, including the types of records previously searched and the search terms used. It may be that the OCC attorney was justified in not engaging in a new search in response to the Request because the attorney had recently undertaken an adequate search reasonably calculated to discover legal protocol governing FISA’s application to sanctioning decisions, but the Court cannot determine as much on the present record. Alternatively, rather than
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 Case 1:15-cv-05740-ER Document 57 Filed 10/20/16 Page 1 of 2 USDC SDNY

DOCUJv.I:ENT

ELECTRONIC.ALLY FTI.ED DOC# ______________

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------:.·-------------------X

DATE FTI..ED: _ 10/_ 20/_ 201_6 _

THE NEW YORK TIMES COMPANY and

CHARLIE SAVAGE,

15-cv-5740 (ER)

Plaintiffs,

STIPULATION AND ORDER

v.

OF SETTLEMENT AND DISMISSAL

UNITED STATES DEPARTMENT OF TREASURY,

Defendant. · -------------------------------------------------------------~---x
WHEREAS Plaintiffs The New York Times Company and Charlie Savage

(together, "Plaintiffs") filed this suit in the United States District Court for the Southern

District ofNew York pursuant to the Freedom oflnformation Act ("FOIA"), 5 U.S.C. §

552, seeking the release of certain documents by Defendant United States Department of

Treasury ("Treasury") in connection with an earlier administrative request for the same

records (the "FOIA Request"); and

WHEREAS Treasury, after searching for records responsive to the FOIA request,

has identified only one such record, which the Court ruled was exempt from disclosure in

full pursuant to 5 U.S.C. § 552(b)(5) but directed the parties to provide further briefing on

the adequacy of Treasury's search for records;

IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as

follows:

1.

Plaintiffs no longer wish to further contest the adequacy of Treasury's

search and waive any and all claims that they now have or may hereafter acquire against

Treasury, any other department or agency of the United States Government, and any

Case 1:15-cv-05740-ER Document 57 Filed 10/20/16 Page 2 of 2
Dated: New York, NY October 20, 2016

 
 U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:15−cv−05740−ER

CLOSED,ECF

The New York Times Company, et al v. United States Department of the Treasury Assigned to: Judge Edgardo Ramos Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 07/22/2015 Date Terminated: 10/20/2016 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

The New York Times Company,

represented by David Edward McCraw The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 (212) 556−4031 Fax: (212) 556−1009 Email: mccraw@nytimes.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Alexander Kutner The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 (212) 556−5188 Fax: (212) 556−4634 Email: kutnerj@ballardspahr.com TERMINATED: 02/16/2016 LEAD ATTORNEY

Tali Ravit Leinwand The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 212−556−7061 Fax: 212−556−1009 Email: tali.leinwand@nytimes.com TERMINATED: 09/12/2016

Plaintiff Charlie Savage

represented by David Edward McCraw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Alexander Kutner (See above for address) TERMINATED: 02/16/2016 LEAD ATTORNEY

Tali Ravit Leinwand (See above for address) TERMINATED: 09/12/2016

V. Defendant

represented by

United States Department of the Treasury

Dominika Natalia Tarczynska United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212) 637−2748 Fax: (212) 637−2686 Email: dominika.tarczynska@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/22/2015 07/22/2015 07/22/2015 07/22/2015 07/22/2015
07/22/2015
07/23/2015
07/23/2015 07/23/2015 07/23/2015 07/23/2015
08/14/2015 08/21/2015 08/24/2015

# Docket Text
1 COMPLAINT against United States Department of the Treasury. (Filing Fee $ 400.00, Receipt Number 0208−11182712)Document filed by The New York Times Company,, Charlie Savage.(Kutner, Jeremy) (Entered: 07/22/2015)
2 CIVIL COVER SHEET filed. (Kutner, Jeremy) (Entered: 07/22/2015)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Charlie Savage, The New York Times Company,.(Kutner, Jeremy) (Entered: 07/22/2015)
4 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of the Treasury, re: 1 Complaint. Document filed by Charlie Savage, The New York Times Company,. (Kutner, Jeremy) (Entered: 07/22/2015)
5 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUESTED FILED AS TO PARTY ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Preet Bharara, re: 1 Complaint. Document filed by Charlie Savage, The New York Times Company,. (Kutner, Jeremy) (Entered: 07/22/2015)
6 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUESTED FILED AS TO PARTY ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Loretta Lynch, re: 1 Complaint. Document filed by Charlie Savage, The New York Times Company,. (Kutner, Jeremy) (Entered: 07/22/2015)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Edgardo Ramos. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (ky) (Entered: 07/23/2015)
Magistrate Judge James L. Cott is so designated. (ky) (Entered: 07/23/2015)
Case Designated ECF. (ky) (Entered: 07/23/2015)
7 ELECTRONIC SUMMONS ISSUED as to United States Department of the Treasury. (ky) (Entered: 07/23/2015)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE−FILE Document No. 5 Request for Issuance of Summons, 6 Request for Issuance of Summons. The filing is deficient for the following reason(s): request of issuance of summons as to party error. (ky) (Entered: 07/23/2015)
8 NOTICE OF APPEARANCE by Dominika Natalia Tarczynska on behalf of United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 08/14/2015)
9 LETTER MOTION for Extension of Time to File Answer addressed to Judge Edgardo Ramos from Dominika Tarczynska dated August 21, 2015. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 08/21/2015)
10 ORDER granting 9 Letter Motion for Extension of Time to Answer re 1 Complaint. United States Department of the Treasury answer due 9/25/2015. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered:

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08/24/2015)
11 ANSWER to 1 Complaint. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 09/25/2015)
12 NOTICE OF INITIAL COURT CONFERENCE: Initial Conference set for 11/13/2015 at 12:10 PM in Courtroom 619, 40 Centre Street, New York, NY 10007 before Judge Edgardo Ramos. (As further set forth in this Order.) (spo) (Entered: 10/14/2015)
13 JOINT LETTER addressed to Judge Edgardo Ramos from Jeremy Kutner dated November 10, 2015 re: Initial Case Management and Scheduling Conference. Document filed by Charlie Savage, The New York Times Company,.(Kutner, Jeremy) (Entered: 11/10/2015)
Minute Entry for proceedings held before Judge Edgardo Ramos: Initial Pretrial Conference held on 11/13/2015. Plaintiffs' counsel present. Defendant's counsel present. Parties granted leave to file their motions for summary judgment with the following briefing schedule: government's moving papers due December 18, 2015; plaintiffs' cross−motion due January 22, 2016; government's response and reply due February 12, 2016; and plaintiffs' reply due February 26, 2016. (Motions due by 12/18/2015. Cross Motions due by 1/22/2016. Responses due by 2/12/2016. Replies due by 2/26/2016.) (Court Reporter Eve Giniger) (jar) (Entered: 11/13/2015)
14 LETTER addressed to Judge Edgardo Ramos from Dominika Tarczynska dated November 30, 2015 re: In Camera Review of Document At Issue In Litigation. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 11/30/2015)
15 CONSENT LETTER MOTION for Extension of Time to File Motion for Summary Judgment addressed to Judge Edgardo Ramos from Dominika Tarczynska dated December 16, 2015. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 12/16/2015)
16 ORDER granting 15 Letter Motion for Extension of Time to File Motion for Summary Judgment. Defendant's time to file its motion for summary judgment is extended to Wednesday, December 23, 2015. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 12/17/2015)
17 MOTION for Summary Judgment . Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 12/23/2015)
18 MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 12/23/2015)
19 DECLARATION of Bradley T. Smith in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tarczynska, Dominika) (Entered: 12/23/2015)
20 NOTICE OF APPEARANCE by David Edward McCraw on behalf of Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 12/24/2015)
21 MOTION for Conference Re: Proposed Motion to Take Discovery. Document filed by Charlie Savage, The New York Times Company,.(McCraw, David) (Entered: 01/07/2016)
22 ORDER entered 21 Motion for Conference. The Government is directed to respond by Friday, January 15, 2016. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) Modified on 1/8/2016 (jar). (Entered: 01/08/2016)
23 TRANSCRIPT of Proceedings re: CONFERENCE held on 11/13/2015 before Judge Edgardo Ramos. Court Reporter/Transcriber: Eve Giniger, (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 2/8/2016. Redacted Transcript Deadline set for 2/19/2016. Release of Transcript Restriction set for 4/18/2016.(McGuirk, Kelly) (Entered: 01/15/2016)

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24 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/13/15 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: 01/15/2016)
25 LETTER addressed to Judge Edgardo Ramos from Dominika Tarczynska dated January 15, 2016 re: Response to Plaintiffs' January 7, 2016 letter seeking pre−motion conference. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 01/15/2016)
26 ORDER granting 21 Letter Motion for Conference. The Court has reviewed Plaintiffs' request for leave to file a motion for further discovery (Doc. 21), and Defendant's letter response thereto (Doc. 25). The Court will forego a pre−motion conference, and hereby ORDERS the following schedule for briefing on the sole question of whether further depositions are required to ascertain the substance and consistency of Defendant's justifications for withholding the single document at issue under Exemption 5: Plaintiffs' motion, limited to ten (10) pages, is due February 2, 2016; Defendant's opposition, limited to ten (10) pages, is due February 16, 2016; Plaintiffs reply, limited to five (5) pages, is due February 23, 2016.The Court's previous briefing schedule for the parties' cross−motions for summary judgment (see Minute Entry for Nov. 13, 2015 conference, and Doc. 16), is hereby STAYED pending the Court's resolution of the discovery issue. (Signed by Judge Edgardo Ramos on 1/19/2016) (lmb) (Entered: 01/19/2016)
Set/Reset Deadlines: Motions due by 2/2/2016. Responses due by 2/16/2016. Replies due by 2/23/2016. (lmb) (Entered: 01/19/2016)
27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d). Document filed by Charlie Savage, The New York Times Company,.(McCraw, David) (Entered: 02/02/2016)
28 MEMORANDUM OF LAW in Support re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d). . Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 02/02/2016)
29 DECLARATION of David E. McCraw in Support re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d).. Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 02/02/2016)
30 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d). addressed to Judge Edgardo Ramos from Dominika Tarczynska dated February 10, 2016. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 02/10/2016)
31 NOTICE of Withdrawal of Counsel. Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 02/14/2016)
32 ORDER granting 30 Letter Motion for Extension of Time to File Response/Reply re 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d). Responses due by 2/23/2016. Replies due by 3/1/2016. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 02/16/2016)
33 MEMO ENDORSEMENT on re: 31 NOTICE of Withdrawal of Counsel Jeremy Alexander Kutner. ENDORSEMENT: SO ORDERED. (Attorney Jeremy Alexander Kutner terminated.) (Signed by Judge Edgardo Ramos on 2/16/2016) (adc) (Entered: 02/17/2016)
34 MEMORANDUM OF LAW in Opposition re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d). . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 02/23/2016)
35 DECLARATION of Marshall H. Fields, Jr. in Opposition re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d).. Document filed by United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Tarczynska, Dominika) (Entered: 02/23/2016)

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36 DECLARATION of John E. Smith in Opposition re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d).. Document filed by United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tarczynska, Dominika) (Entered: 02/23/2016)
37 REPLY MEMORANDUM OF LAW in Support re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d). . Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 03/01/2016)
38 OPINION AND ORDER #106416 re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) filed by Charlie Savage, The New York Times Company. Treasury is hereby ORDERED to provide an affidavit or declaration from Marshall H. Fields, Jr. on or before May 13, 2016. The Times' cross−motion is due May 27, 2016. Treasury's response and reply is due June 10, 2016. The Times' reply is due June 24, 2016. The Times' motion is DENIED. The Clerk of the Court is respectfully directed to terminate the motion. Doc. 27. It is SO ORDERED. (As further set forth in this Order.) (Cross Motions due by 5/27/2016. Responses due by 6/10/2016, Replies due by 6/24/2016.) (Signed by Judge Edgardo Ramos on 4/26/2016) (kko) Modified on 5/2/2016 (ca). (Entered: 04/26/2016)
39 DECLARATION of Marshall H. Fields, Jr. in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 05/13/2016)
40 INTERNET CITATION NOTE: Material from decision with Internet citation re: 38 Memorandum & Opinion, Set Deadlines. (vf) (Entered: 05/18/2016)
41 NOTICE OF APPEARANCE by Tali Ravit Leinwand on behalf of Charlie Savage, The New York Times Company,. (Leinwand, Tali) (Entered: 05/26/2016)
42 MEMORANDUM OF LAW in Opposition re: 17 MOTION for Summary Judgment . . Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 05/26/2016)
43 DECLARATION of David E. McCraw in Opposition re: 17 MOTION for Summary Judgment .. Document filed by Charlie Savage, The New York Times Company,. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(McCraw, David) (Entered: 05/26/2016)
44 REPLY MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 06/10/2016)
45 DECLARATION of Bradley T. Smith in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 06/10/2016)
46 LETTER MOTION for Conference addressed to Judge Edgardo Ramos from David E. McCraw dated June 17, 2016. Document filed by Charlie Savage, The New York Times Company,.(McCraw, David) (Entered: 06/17/2016)
47 LETTER RESPONSE in Opposition to Motion addressed to Judge Edgardo Ramos from Dominika Tarczynska dated June 23, 2016 re: 46 LETTER MOTION for Conference addressed to Judge Edgardo Ramos from David E. McCraw dated June 17, 2016. . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 06/23/2016)
48 OPINION AND ORDER #106662 re: 17 MOTION for Summary Judgment filed by United States Department of the Treasury, 46 LETTER MOTION for Conference addressed to Judge Edgardo Ramos from David E. McCraw dated June 17, 2016 filed by Charlie Savage, The New York Times Company. Treasury's motion for summary judgment is GRANTED as to the withholding of the Memo pursuant to FOIA Exemption 5. It is DENIED as to the adequacy of the search, with leave to renew following supplemental submissions and briefing. Treasury is directed to submit its supplemental affidavits or declarations on or before September 16, 2016. Treasury also has the option of submitting a supplemental brief on that date, but it should be no longer than fifteen (15) pages. The Times is then directed to submit its own response

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brief on or before October 14, 2016, to be no longer than fifteen (15) pages. Treasury's reply brief, no longer than five (5) pages, is due on or before October 28, 2016. The Clerk of the Court is respectfully directed to terminate the motion, Docs. 17, 46. It is SO ORDERED. (As further set forth in this Order.) (Signed by Judge Edgardo Ramos on 8/2/2016) (kko) Modified on 8/26/2016 (ca). (Entered: 08/03/2016)
Set/Reset Deadlines: Brief due by 9/16/2016. Responses to Brief due by 10/14/2016. Reply to Response to Brief due by 10/28/2016. (kko) (Entered: 08/03/2016)
49 INTERNET CITATION NOTE: Material from decision with Internet citation re: 48 Memorandum & Opinion. (vf) (Entered: 08/29/2016)
50 CONSENT LETTER MOTION for Extension of Time to File supplemental declarations and brief addressed to Judge Edgardo Ramos from Dominika Tarczynska dated September 8, 2016. Document filed by United States Department of the Treasury.(Tarczynska, Dominika) (Entered: 09/08/2016)
51 NOTICE of Withdrawal of Counsel. Document filed by Charlie Savage, The New York Times Company,. (McCraw, David) (Entered: 09/09/2016)
52 MEMO ENDORSEMENT on re: 51 Notice of Withdrawal of Counsel filed by Charlie Savage, The New York Times Company. ENDORSEMENT: SO ORDERED. Attorney Tali Ravit Leinwand terminated. (Signed by Judge Edgardo Ramos on 9/12/2016) (kko) (Entered: 09/12/2016)
53 ORDER granting 50 Letter Motion for Extension of Time to File supplemental declarations and brief. Defendant's declarations and supplemental brief are now due by September 23, 2016. Plaintiff's response brief is due by October 21, 2016. Defendant's reply is due November 4, 2016. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 09/12/2016)
54 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . . Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 09/22/2016)
55 DECLARATION of M. William Schisa in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 09/22/2016)
56 DECLARATION of Marshall H. Fields, Jr. in Support re: 17 MOTION for Summary Judgment .. Document filed by United States Department of the Treasury. (Tarczynska, Dominika) (Entered: 09/22/2016)
57 STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows: 1. Plaintiffs no longer wish to further contest the adequacy of Treasury's search and waive any and all claims that they now have or may hereafter acquire against Treasury, any other department or agency of the United States Government, and any officer employee, or agent of Treasury or the United States Government related to or arising out of Plaintiffs' FOIA Request. 2. This action is hereby dismissed with prejudice, with each party to bear its own fees and costs, provided that the Court shall retain jurisdiction over any issues that may arise relating to this Stipulation and Order. 3. The parties understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. (Signed by Judge Edgardo Ramos on 10/20/2016) (mro) (Entered: 10/21/2016)
Terminate Transcript Deadlines (mro) (Entered: 11/14/2016)