UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. lO Civ. 4419 (RJS)

AMERICAN CIVIL LIBERTIES UNION, ETAL.,

Plaintiffs,

VERSUS

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, ET AL.,

Defendants.
OPINION AND ORDER November 15, 2011

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RICHARD J. SULLIVAN, District Judge:

In this Freedom of Information Act ("FOIA") suit, Plaintiffs American Civil Liberties Union ("ACLU") and American Civil Liberties Union Foundation seek disclosure and expedited processing of records concerning the government's interpretation and implementation of the FISA Amendments Act of 2008 ("FAN'), the statute governing foreign intelligence surveillance. Specifically, Plaintiffs bring this action against the Office of the Director of National Intelligence ("ODNI"), the Department of Justice ("DO]"), the National Security Agency ("NSA"), and the Department of Defense ("DOD"), seeking disclosure of statistical data, legal memoranda, and other reports and records pertaining to FAA surveillance.

Now before the Court are the parties' cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Plaintiffs' motion to strike classified declarations submitted by Defendants or, in the alternative, for in camera review of the agency records at issue. For the reasons that follow, Plaintiffs' motion to strike the classified declarations is denied, and their motion in the alternative for in camera review is granted in part and denied in part. However, the Court defers ruling on the motions for summary judgment pending submission of supplemental materials described below.

I. BACKGROUND1
A. The FAA
Congress enacted the Foreign Intelligence Surveillance Act of 1978 (“FISA”) “to establish procedures under which federal officials could obtain authorization to conduct electronic surveillance for foreign intelligence purposes.” Amnesty Int’l USA v. Clapper, 638 F.3d 118, 122 (2d Cir. 2011); see 50 U.S.C. §§ 1801(f), 1804(a)(6)(A). Notably, FISA created the Foreign Intelligence Surveillance Court (“FISC”), a body comprised of eleven federal judges and vested with jurisdiction to authorize electronic surveillance of a particular target “for the purpose of obtaining foreign intelligence information.” 50 U.S.C. §§ 1802(b); see United States v. Abu-Jihaad, 630 F.3d 102, 117 (2d Cir. 2010).
1 Unless otherwise noted, the following facts are derived from Plaintiffs’ Rule 56.1 Statement. The government did not submit a Local Rule 56.1 statement, claiming that “the general rule in this Circuit is that in FOIA actions, agency affidavits alone will support a grant of summary judgment.” Ferguson v. F.B.I., No. 89 Civ. 5071 (RDP), 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995); cf. NAACP Legal Def. & Educ. Fund, Inc. v. U.S. Dep’t of Housing, No. 07 Civ. 3378 (GEL), 2007 WL 4233008, at *1 n.1 (S.D.N.Y. Nov. 30, 2007). In resolving the instant motions, the Court has also considered the Complaint, Plaintiffs’ Memorandum of Law in Support of the Motion for Summary Judgment (“Pls.’ Mem.”), Defendants’ Memorandum of Law in Support of the Cross-Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment (“Defs.’ Mem.”), Plaintiffs’ Reply Memorandum of Law in Support of the Motion for Summary Judgment and in Opposition to Defendants’ Cross-Motion for Summary Judgment (“Reply”), as well as Plaintiffs’ Memorandum of Law in Support of the Motion to Strike (“Pls.’ Strike Mem.”), Defendants’ Memorandum of Law in Opposition to the Motion to Strike (“Defs.’ Strike Opp’n”), Plaintiffs’ Reply Memorandum of Law in Support of the Motion to Strike (“Strike Reply”), and the various exhibits and declarations attached thereto.

In 2008, the FAA amended FISA, “leav[ing] much of the preexisting surveillance authorization procedure intact, but . . . creat[ing] new procedures for the authorization of foreign intelligence electronic surveillance targeting non-United States persons located outside the United States.” Clapper, 638 F.3d at 122; see 50 U.S.C. § 1881a. In contrast to the FISA scheme, the FAA “does not require the government to submit an individualized application to the FISC identifying the particular targets or facilities to be monitored.” Clapper, 638 F.3d at 124. Instead, Section 702 of the FAA permits the Attorney General and Director of National Intelligence to apply for surveillance authorization by submitting a written certification attesting, inter alia, that “a significant purpose of the acquisition is to obtain foreign intelligence information,” 50 U.S.C. § 1881a(g)(2)(A)(v), that adequate targeting and minimization procedures have been approved or submitted for FISC approval, and that the surveillance complies with the relevant statutory restrictions. Clapper, 638 F.3d at 124. If the FISC authorizes the requested surveillance, the Attorney General and Director of National Intelligence “may authorize jointly, for a period of up to 1 year . . . , the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a). The FAA is currently set to expire on December 31, 2012. See Pub. L. No. 110-261, § 403(b)(1), 122 Stat. 2436 (2008).
B. The FOIA Request
By letter dated November 18, 2009, Plaintiffs submitted a FOIA request to the ODNI, NSA, DOD, and DOJ (including the National Security Division (“NSD”) and the Federal Bureau of Investigation (“FBI”)) (collectively, the “government”), seeking

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“any and all” records in seven document categories. (Compl. Ex. A.) Specifically, Plaintiffs requested records pertaining to (1) the number of FAA acquisition applications submitted to the FISC and the number of applications granted, granted with modification, or rejected; (2) the number of United States citizens or residents whose communications have been collected, intercepted, or otherwise targeted pursuant to Section 702; (3) the collection, analysis, or dissemination of purely domestic communications pursuant to Section 702; (4) legal memoranda, procedures, policies, or other guidelines related to Section 702 surveillance; (5) inter- or intra-agency correspondence related to the scope, interpretation, or rules governing Section 702 surveillance; (6) reports, assessments or reviews issued or conducted pursuant to Section 702; and (7) complaints, investigations, or disciplinary actions related to Section 702 surveillance. (See Pls.’ 56.1 ¶ 8.) Plaintiffs also sought expedited processing of their FOIA request and waiver of the processing fees associated with disclosure. (Id. ¶ 10.) The ODNI, NSA, and DOD subsequently denied Plaintiffs’ request for expedited processing, while the DOJ referred Plaintiffs’ request to various divisions of the agency. (Id. ¶ 11.)
C. Procedural History
Plaintiffs commenced this action by filing a complaint on June 3, 2010, seeking to compel timely processing and prompt disclosure of all requested records. The parties entered a stipulation clarifying and limiting the scope of the FOIA request on August 13, 2010, and the government produced 422 pages of redacted documents on November 29, 2010. On April 25, 2011, the ODNI, NSA, NSD and FBI each provided declarations explaining their respective redactions and withholdings. Plaintiffs moved for summary judgment on

June 3, 2011, and Defendants cross-moved for summary judgment on July 1, 2011. In conjunction with their reply papers, Plaintiffs filed a motion to strike the classified declarations submitted by Defendants or, in the alternative, for in camera review. The motions were fully submitted as of August 17, 2011.
II. LEGAL STANDARD
The standard for summary judgment is well settled. Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be rendered “if the movant 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 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of proving that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has met its burden, the nonmoving party “must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (internal citations and quotation marks omitted).
In ruling on a motion for summary judgment, the court must resolve any ambiguity in favor of the nonmoving party. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments . . . .” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). As a result, summary judgment will not issue where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

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248. However, “a complete failure of proof concerning an essential element of the nonmoving party’s case” renders summary judgment proper. Celotex, 477 U.S. at 323. “Inferences and burdens of proof on crossmotions for summary judgment are the same as those for a unilateral summary judgment motion.” Ferrigno v. U.S. Dep’t of Homeland Security, No. 09 Civ. 5878 (RJS), 2011 WL 1345168, at *3 (S.D.N.Y. Mar. 29, 2011).
III. DISCUSSION
“The Freedom of Information Act adopts as its most basic premise a policy strongly favoring public disclosure of information in the possession of federal agencies.” Halpern v. Fed. Bureau of Investigation, 181 F.3d 279, 286 (2d Cir. 1999). Specifically, FOIA requires that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).
“Congress recognized, however, that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166-67 (1985). Accordingly, FOIA also provides nine enumerated exemptions to the disclosure requirement, which represent “a balance struck by Congress between the public’s right to know and the Government’s legitimate interest in keeping certain information confidential.” ACLU v. Dep’t of Def., 723 F. Supp. 2d 621, 626 (S.D.N.Y. 2010) (quoting Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003)). Although the FOIA exemptions are narrowly construed, they “are intended to have meaningful reach and application.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). All doubts as to whether a FOIA exemption applies are

resolved in favor of disclosure. See Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010).
Summary judgment pursuant to Rule 56 is “the preferred procedural vehicle for resolving FOIA disputes.” Adamowicz v. I.R.S., 552 F. Supp. 2d 355, 360 (S.D.N.Y. 2008). “In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). Summary judgment is proper where affidavits submitted by the defending agency “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.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009). Agency affidavits, known in FOIA litigation as Vaughn affidavits,2 are “accorded a presumption of good faith.” Carney, 19 F.3d at 812. However, “[t]he agency’s decision that the information is exempt from disclosure receives no deference.” Bloomberg, 601 F.3d at 147. Accordingly, it is the responsibility of the federal courts to conduct de novo review of an agency decision to withhold records requested pursuant to FOIA. See A. Michael’s Piano Inc. v. Fed. Trade Comm., 18 F.3d 138, 143 (2d Cir. 1994).
In this case, Defendants seek to justify their redactions and withholdings with
2 In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), the D.C. Circuit Court “conceived of the document now known as the Vaughn affidavit as a means of overcoming the institutional difficulties in FOIA litigation.” Halpern, 181 F.3d at 290.

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public declarations from the ODNI, NSD, NSA, and FBI, as well as two supplemental classified declarations submitted ex parte and in camera. At issue are three FOIA exemptions invoked by the various agencies: (1) the national security exemption, 5 U.S.C. § 552(b)(1) (“Exemption 1”); (2) the statutory exemption, 5 U.S.C. § 552(b)(3) (“Exemption 3”); and (3) the law enforcement techniques exemption, 5 U.S.C. § 552(b)(7)(E) (“Exemption 7(E)”).3 In what follows, the Court considers de novo the sufficiency of the agency declarations as a basis for the government’s decision to withhold and redact the requested records pursuant to Exemptions 1, 3, and 7(E).
A. ODNI Declaration
The ODNI submitted an 11-page declaration by John F. Hackett, Director of Information Management for the ODNI (“Hackett Declaration”). (Decl. of Robert D. Balin, June 3, 2011, Ex. 4, Doc. No. 34.) The Hackett Declaration indicates that in response to Plaintiffs’ FOIA request, the ODNI located 52 responsive documents comprising 499 pages. (Id. ¶ 18.) Of the 52 responsive documents, the ODNI referred 46 documents comprising 396 pages to other agencies for direct response to the FOIA request and released 6 documents comprising 103 pages in redacted form. (Id. ¶ 19.) Three of the released documents are semi-annual assessments conducted pursuant to Section 702, while the remaining three documents are ODNI cover letters transmitting the semi-annual assessments to Congress. (Id. ¶ 20.)
The Hackett Declaration devotes a single substantive paragraph to the redactions at

issue,4 explaining that “[t]he three semiannual assessments were released with redactions made pursuant to FOIA Exemptions 1 and 3, which protect information that is currently and properly classified and information exempt from disclosure by statute.” (Id. ¶ 23.) After asserting that the information at issue is “currently and properly classified pursuant to Executive Order 13526” and “protected by the sources and methods provision of the National Security Act, 50 U.S.C. § 4031(i),” the Hackett Declaration simply avers that unspecified “[o]ther agencies will address the classified intelligence sources and method information contained in these documents in their respective declarations . . . .” (Id.)
1. Exemption 1
FOIA Exemption 1 permits an agency to withhold records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense . . . and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). As noted above, the Hackett Declaration invokes Executive Order 13,526, which permits classification of records relating to, inter alia, “intelligence activities (including covert action), intelligence sources or methods, or cryptology.” Exec. Order No. 13,526 § 1.4(c) (Dec. 29, 2009). Under Executive Order 13,526, an agency may classify information when it “determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification

3 Plaintiffs do not contest agency withholdings pursuant to Exemptions 2, 4, 6, 7(C) or 7(D). (Pls.’ Mem. 9 n.16).

4 Although the Hackett Declaration also addresses redactions to the ODNI cover letters pursuant to Exemptions 2 and 6 (Hackett Decl. ¶ 21), those withholdings are not contested (Pls.’ Mem. 9 n.16).

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authority is able to identify or describe the damages.” Id. § 1.1(a)(4). Executive Order 13,526 further provides that “[i]n no case shall information be classified . . . in order to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security.” Id. § 1.7(a).

Because courts “lack the expertise

necessary to second-guess . . . agency

opinions in the typical national security

FOIA case,” Am. Civil Liberties Union v.

U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C.

Cir. 2011) (internal citations and quotation

marks omitted), it is well established that

courts must accord “substantial deference”

to agency affidavits that implicate national

security, Associated Press v. U.S. Dep’t of

Def., 498 F. Supp. 2d 707, 710 (S.D.N.Y.

2007) (internal citations and quotation

marks omitted). Nonetheless, “deference is

not equivalent to acquiescence,” Campbell

v. U.S. Dep’t of Justice, 164 F.3d 20, 30

(D.C. Cir. 1998), and the Court must not

“relinquish[]”

its

“independent

responsibility” to review agency

determinations de novo, Goldberg v. U.S.

Dep’t of State, 818 F.2d 71, 77 (D.C. Cir.

1987).

Upon careful review of the Hackett Declaration, the Court finds that the ODNI has failed to make the required showing that the information withheld “logically falls” within Exemption 1. Wilner, 592 F.3d at 73. The Hackett Declaration “gives no contextual description . . . of the specific redactions made to the various documents,” Halpern, 181 F.3d at 293, and fails even to identify the provisions of Executive Order 13,526 that purportedly apply. Although the redacted semi-annual reports certainly

contain contextual clues, the very purpose of the Vaughn affidavit is to “enable[] the court to review the agency’s claimed redactions without having to pull the contextual information out of the redacted documents for itself.” Id. at 294. Assessed in terms of “reasonable specificity,” the Hackett Declaration is clearly insufficient to justify the ODNI withholdings under Exemption 1.
2. Exemption 3
The ODNI also appeals to FOIA Exemption 3, which applies to records “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). The two threshold criteria for an Exemption 3 withholding are that: “(1) the statute invoked qualifies as an [E]xemption 3 withholding statute, and (2) the materials withheld fall within that statute’s scope.” A. Michael’s Piano, 18 F.3d at 143 (citing CIA v. Sims, 471 U.S. 159, 167 (1985)). Here, the Hackett Declaration relies on the “sources and methods” provision of the National Security Act of 1947, as amended (the “National Security Act”), which states that “[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1).5 Plaintiffs do not dispute that Section 403-1(i) of the National Security Act constitutes an exemption statute. See Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009). Rather, the parties contest the second prong of the Exemption 3 analysis – that is, whether the material withheld relates to “intelligence sources and
5 The Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (codified at 50 U.S.C. § 403-1(i)(1)), amended the National Security Act. See Am. Civil Liberties Union v. Dep’t of Def., 389 F. Supp. 2d 547, 559 n.8 (S.D.N.Y. 2005). Accordingly, the Janosek Declaration refers to the same provision as Section 102(A)(i)(l) of the Intelligence Reform and Terrorism Prevention Act of 2004. See infra Part III.C.2.

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methods” within the meaning of the National Security Act.

With respect to Exemption 3, the Hackett Declaration offers a single sentence, which asserts that “[t]he information in these documents . . . is protected by the sources and methods provision of the National Security Act,” and recites the language of the statute. (Hackett Decl. ¶ 23.) But “conclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not . . . carry the government’s burden.” Larson, 565 F.3d at 864. The affidavit here is no exception. Mere invocation of the exemption statute, coupled with “b3” labels throughout the redacted documents, is simply not enough. Accordingly, the Court also finds the Hackett Declaration insufficient to justify the ODNI withholdings under Exemption 3.

B. NSD Declaration

The NSD submitted a nine-page declaration by Mark A. Bradley, Director of the FOIA and Declassification Unit of the Office of Law and Policy in the NSD (“Bradley Declaration”). (Decl. of Robert D. Balin, June 3, 2011, Ex. 5, Doc. No. 34.) The Bradley Declaration indicates that in response to Plaintiffs’ FOIA request, the NSD located five categories of records comprising more than 500 pages, but withheld them all pursuant to Exemption 1. (Id. ¶ 5.) The Bradley Declaration also states that the FBI forwarded an unspecified number of documents to the NSD, and that “portions of those documents were withheld” under Executive Order 13,526. (Id. ¶ 8.)

According to the Bradley Declaration,

the responsive NSD records fall into the

following categories: (1) notices and reports

to the FISC; (2) Attorney General

guidelines;

(3)

correspondence;

(4) implementation procedures; and (5) semi-annual reports and supporting documentation. (Id. ¶ 5.) The Bradley Declaration allots two paragraphs of explanation to each record category. The first paragraph in each pair avers that the information at issue “is currently and properly classified under Executive Order 13526” because it “meets the criteria for classification as set forth in subparagraphs (c) and (g) of Section 1.4 of Executive Order 13526.” (Id. ¶¶ 10, 12, 14, 16, 18.) The other paragraph in each pair offers variations on the claim that disclosure would cause damage to national security by revealing “the manner and means by which the Government targets non-United States persons” (id. ¶¶ 11, 13, 17, 19), or by “provid[ing] our adversaries and foreign intelligence targets with insight into the Government’s foreign intelligence collection capabilities” (id. ¶¶ 11, 13, 15, 17, 19).
Once again, the Court finds that the summary assertions afforded by the Bradley Declaration fail to “describe the justifications for nondisclosure” under Exemption 1 with “reasonabl[e] specific[ity].” Wilner, 592 F.3d at 73 (internal citations and quotation marks omitted). The NSD does cite subparagraphs (c) and (g) of Section 1.4 of Executive Order 13,526, which 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 the national security.” (Bradley Decl. ¶¶ 10, 12, 14, 16, 18 (citing Exec. Order No. 13,526 §§ 1.4(c), (g) (Dec. 29, 2010).) But the surrounding explanations “read more like a policy justification” for Section 1.4 of Executive Order 13,526, “while barely pretending to apply the terms of that section to the specific

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facts of the documents at hand.”6 Halpern, 181 F.3d at 293. By proffering conclusory and nearly identical justifications for the various NSD withholdings, the government appears to assume that de novo FOIA review requires little more than a judicial spell check. Because “blind deference is precisely what Congress rejected when it amended FOIA in 1974,” id., the Court finds the Bradley Declaration insufficient to justify the NSD withholdings under Exemption 1.
C. NSA Declaration
The NSA submitted a 15-page public declaration by Diane M. Janosek, Deputy Associate Director for Policy and Records for the NSA (“Janosek Declaration”). (Decl. of Robert D. Balin, June 3, 2011, Ex. 7, Doc. No. 34.) The Janosek Declaration indicates that in response to Plaintiffs’ FOIA request, the NSA located 27 responsive documents comprising 144 pages. (Id. ¶ 12.) Following a “line-by-line review” of the responsive information, the NSA withheld in full 12 documents comprising 70 pages and released 15 documents comprising 74 pages in redacted form. (Id.) The Janosek Declaration cites Exemptions 1 and 3 as the basis for the NSA withholdings. (Id. ¶ 3.) The ODNI and NSD separately referred an unspecified number of documents for NSA consultation and review. (Id. ¶¶ 16-17.) With the exception of the redacted semi-annual reports, the
6 Moreover, the “Deleted Page Information Sheets” that accompany the Bradley Declaration appear to invoke Exemptions 3 and 7(E), in addition to Exemption 1, as the basis for deletions to records referred by the FBI. But the Bradley Declaration itself makes no mention of Exemptions 3 and 7(E) (see Bradley Decl. ¶¶ 8-9), and the government insists that the “NSD relied on Exemption 1 for information it withheld” in the FBI records (Defs.’ Mem. 10-11 n.6).

referred documents were also withheld pursuant to Exemptions 1 and 3. (Id.)
1. Exemption 1
With respect to Exemption 1, the Janosek Declaration invokes Executive Order 13,526 as the basis for the requested records “to be kept secret in the interest of national defense.” See 5 U.S.C. § 552(b)(1). Specifically, the Janosek Declaration avers that the classified information at issue includes “foreign government information” pursuant to Section 1.4(b), “intelligence activities (including covert action), intelligence sources and methods, or cryptology” pursuant to Section 1.4(c), and “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security” pursuant to Section 1.4(g). (Id. ¶ 21.) In what follows, the Janosek Declaration explains that Plaintiffs’ FOIA request “seeks specific information about operational details of NSA’s collection under the FAA,” and that such disclosure “would reveal information about NSA’s success or lack of success in its collection efforts” and about “the U.S. Intelligence Community’s capabilities, priorities, and activities.” (Id. ¶ 23.) The Janosek Declaration further asserts that disclosure of the requested information would provide adversaries of the United States with information about “the nature and frequency of the Government’s use of specific techniques,” thereby enabling them to undermine the national security mission of the NSA. (Id.)
With respect to the statistical portions of the instant FOIA request, the Janosek Declaration clearly falls short of the mark. As modified by the August 13, 2010 stipulation, Plaintiffs’ FOIA request seeks “documents stating numbers of [S]ection 702 applications and orders” generally, as

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well as documents stating numbers of Section 702 applications and orders pertaining to United States persons. (Defs.’ Mem., Addendum i.) Plaintiffs’ reply papers assert that these statistics on FAA overcollection “are central to the FOIA request and thus this case.” (See, e.g., Reply 2.)
Rather than calibrate its response to meet its obligation to “identify or describe” the national security damage that could result from producing the information identified in Plaintiffs’ specific requests, Exec. Order No. 13,526 § 1.1(a)(4), the NSA relies on a blanket assertion that the instant FOIA request impermissibly “seeks . . . operational details” about FAA collection (Janosek Decl. ¶ 23). While it is possible that disclosure of the “frequency of the Government’s use of specific techniques” could, under certain circumstances, implicate national security concerns (id.), a substantial portion of Plaintiffs’ requests target information regarding alleged misuse and abuse of the FAA, such as the numbers of U.S. persons who have been targeted (see Pls.’ Mem. 1; Def.’s Mem., Addendum i). The Janosek Declaration does not “identify or describe” the risks to national security that would accompany disclosure of such information. Exec. Order No. 13,526 § 1.1(a)(4). Because the NSA fails to demonstrate that the withheld statistical information “logically falls within the claimed exemption,” Wilner, 592 F.3d at 73, the Court finds the Janosek Declaration insufficient to justify the statistical withholdings under Exemption 1.
With respect to certain non-statistical portions of the instant FOIA request, the Janosek Declaration supplies more plausible justifications. For example, Plaintiffs’ modified FOIA request seeks legal memoranda, procedures, policies, directives, practices, or guidelines pertaining to Section

702 surveillance, as well as inter- and intraagency correspondence pertaining to the scope of authority granted by Section 702. (Defs.’ Mem., Addendum i-ii.) Although the Janosek Declaration does not address the security risks posed by particular types of documents, the assertion that disclosure of legal memoranda and agency correspondence “would reveal information about the U.S. Intelligence Community’s capabilities, priorities, and activities” (Janosek Decl. ¶ 23) is certainly plausible. But plausibility is not “reasonable specificity,” and the Janosek Declaration still fails to supply anything more than “vague and conclusory” assertions that “read much like bureaucratic double-talk.” Halpern, 181 F.3d at 293. Accordingly, the Court also finds the Janosek Declaration insufficient to justify the remaining NSA withholdings under Exemption 1.
2. Exemption 3
With respect to Exemption 3, the Janosek Declaration relies on three separate statutes that allegedly preclude disclosure of the information at issue. First, the NSA asserts that the requested documents are exempt under section 6 of the National Security Agency Act of 1959, which provides that “[n]othing in this Act or any other law . . . shall be construed to require the disclosure of the organization or any function of the National Security Agency, [or] of any information with respect to the activities thereof . . . .” Pub. Law No. 8636, 50 U.S.C. § 402 note. Second, the NSA cites 18 U.S.C. § 798, which criminalizes the unauthorized disclosure of classified information concerning, inter alia, “the communications intelligence activities of the United States or any foreign government.” 18 U.S.C. § 798. Finally, the NSA refers to section 102A(i)(l) of the Intelligence Reform and Terrorism Prevention Act of 2004, which states that “[t]he Director of

9

National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 4031(i)(l).
As a general matter, “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. The Janosek Declaration asserts, and Plaintiffs do not dispute, that all three statutes qualify as exemption statutes under Exemption 3. Thus, the relevant question is whether the information withheld by the NSA falls within the scope of the relevant exemption statutes.
In this case, the Janosek Declaration devotes only a portion of a sentence to its Exemption 3 justification, concluding that “I have determined that the NSA’s SIGINT activities and functions, and its intelligence sources and methods would be revealed if any of the withheld information about NSA’s collection under the FAA are disclosed.” (Janosek Decl. ¶ 30.) In their opposition papers, Defendants contend that their minimalist approach is permissible because section 6 of the National Security Act “‘eases th[e] burden for the agency, as it exempts from disclosure any information with respect to the activities of’ the NSA.” (Defs.’ Mem. 18 (quoting Wilner, 592 F.3d at 75).) To that end, Defendants lean heavily on the discussion of section 6 in Wilner v. NSA, 592 F.3d 60, 75 (2d Cir. 2009), in which the Second Circuit approved the use of a Glomar response, which permits the NSA to neither confirm nor deny the

existence of responsive records.7 Specifically, the Circuit held that “[e]ven if the NSA affidavits, standing alone, are insufficient, as plaintiffs argue, the very nature of their request . . . establishes that any response would reveal ‘information with respect to the activities’ of the NSA.” Id. Citing Wilner, Defendants urge the same result here. (Defs.’ Mem. 18-19.)
What Defendants neglect to consider is the contrasting “nature of the[] request” at issue here. Wilner, 592 F.3d at 75. In Wilner, the plaintiffs were attorneys representing individuals detained at Guantánamo Bay, Cuba, and their FOIA request sought records showing whether the government had intercepted their communications related to representation of their detainee clients. Id. at 64. Thus, the “very nature” of the FOIA request in Wilner sought records “concerning whether [plaintiffs’] communications were monitored by the NSA.” Id. at 75. The logic of Wilner readily bars Plaintiffs’ requests for legal memoranda and agency correspondence, since the nature of those requests clearly implicates NSA “activities” within the meaning of section 6 of the National Security Act. Pub. Law No. 86-36, 50 U.S.C. § 402 note. But in contrast to Wilner, Plaintiffs here specifically disclaim any request for the content of FAA surveillance applications or the identities of FAA surveillance targets. (Pls.’ Mem. 6.) As previously noted, the primary focus of Plaintiffs’ FOIA request appears to be statistics with respect to FAA overcollection – in other words, statistics that would reflect the exercise of FAA authority beyond the bounds of the authorizing statute. (See id.)
7 The so-called Glomar doctrine “originated in a FOIA case concerning records pertaining to the Hughes Glomar Explorer, an oceanic research vessel.” Wilner, 592 F.3d at 67 (citing Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)).

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Based on the public Janosek Declaration, the Court cannot say that the “very nature” of Plaintiffs’ statistical requests concerns the “activities” of the NSA within the meaning of section 6 of the National Security Act. The single conclusory sentence that seeks to justify the NSA withholdings is similarly insufficient with respect to the remaining exemption statutes, 18 U.S.C. § 798 and 50 U.S.C. § 403-1(i)(l). (Janosek Decl. ¶ 30.) On these facts, to credit a pro forma recitation of the exemption statutes as the basis for the NSA withholdings would be to “relinquish[]” the Court’s “independent responsibility” to review agency determinations de novo. Goldberg v. U.S. Dep’t of State, 818 F.2d 71, 77 (D.C. Cir. 1987). Accordingly, the Court finds the Janosek Declaration insufficient to justify the NSA withholdings under Exemption 3.
D. FBI Declaration
The FBI submitted a 46-page declaration by David M. Hardy, Section Chief of the Records/Information Dissemination Section (“RIDS”) in the Records Management Division of the FBI (“Hardy Declaration”). (Decl. of Robert D. Balin, June 3, 2011, Ex. 13, Doc. No. 34.) The Hardy Declaration indicates that, because the FBI was not among the addressees to the original FOIA request, the FBI first officially became aware of Plaintiffs’ FOIA request on June 9, 2010, when a copy of the Complaint was forwarded by the United States Attorney’s Office for the Southern District of New York. (Id. ¶ 8.) The FBI subsequently reviewed 748 pages of responsive documents and released 239 pages in whole or in part, asserting Exemptions 1, 2, 3, 4, 5, 6, 7(C), 7(D), and 7(E). (Id. ¶ 11.) The FBI also withheld in full 509 pages. (Id.) The released pages were Bates-stamped and coded by exemption “categories” defined in the Hardy Declaration. (Id. ¶¶ 30, 32.) Deleted Page Information Sheets noting the

cited Exemptions were also released as a substitute for pages withheld in full. (Id. ¶ 30.)
The bulk of the Hardy Declaration reads like a primer in records management, expounding at length on how FOIA requests wend through the RIDS organizational chart. In what follows, the Court reserves its focus to the few short paragraphs that address the exemptions at issue here.
1. Exemption 1
As with the foregoing agency affidavits, the Hardy Declaration cites Executive Order 13,526 as the basis for the FBI withholdings under Exemption 1. (Id. ¶¶ 34-35.) The Hardy Declaration avers that the withheld information pertains to “procedures for targeting certain persons outside the United States . . . , acquisition training, retention, analyzation, and dissemination” (id. ¶ 39), as well as “actual intelligence activities and methods used by the FBI” and “intelligence gathering capabilities” (id. ¶ 40). According to the Hardy Declaration, such disclosure could be expected to cause national security damage by “allow[ing] hostile entities to discover the current methods and activities used,” and revealing both the “current specific targets of the FBI’s national security investigations” and the “criteria used and priorities assigned to current intelligence or counterintelligence investigations.” (Id. ¶ 41.) The Hardy Declaration separately avers that specific FBI case file numbers were withheld because they contain “a geographical prefix or the originating office and case number” (id. ¶ 43), which could allow a hostile analyst to create a “partial mosaic” of the specific intelligence activity, “leading to the exposure of actual current activities or methods” (id. ¶ 44).
To the extent that the case file numbers fall within the scope of the operative FOIA

11

request, the Court finds that the Hardy Declaration provides a “reasonably specific” description of the justifications for nondisclosure. Wilner, 592 F.3d at 73. It is well established that “[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because, much like a piece of jigsaw puzzle, [each detail] may aid in piecing together other bits of information . . . .” Larson, 565 F.3d at 864 (alteration in original) (internal citations and quotation marks omitted). In this case, the Hardy Declaration explains that disclosure of an intelligence file number could enable a hostile analyst “to patch bits and pieces of information together until the actual use of the application of the source or method can be determined.” (Hardy Decl. ¶ 44.) Because the Hardy Declaration demonstrates that the case file numbers “logically fall[] within the claimed exemption,” Wilner, 592 F.3d at 73, the Court finds that the FBI has carried its burden with respect to the file number withholdings.8
With respect to the balance of the Exemption 1 withholdings, however, the Hardy Declaration makes little effort to describe the documents at issue or explain why they reflect intelligence “methods,” “activities,” or “capabilities.” (Hardy Decl. ¶ 40.) The Exemption notations on the redacted documents and the Deleted Page Information Sheets are similarly insufficient, with neither “provid[ing] the kind of factspecific justification that either (a) would permit appellant to contest the affidavit in adversarial fashion, or (b) would permit a reviewing court to engage in effective de novo review of the FBI’s redactions.” Halpern, 181 F.3d at 293. Because the
8 Significantly, Plaintiffs concede that the case file numbers are beyond the scope of the FOIA request as narrowed by the Stipulation and make no objection to their nondisclosure. (Pls.’ Mem. 16 n.27.)

Hardy Declaration fails to fulfill the “functional purpose” of the Vaughn affidavit, id., the Court finds that the FBI has not carried its burden with respect to the remaining Exemption 1 withholdings.

2. Exemption 7(E)

The other relevant Exemption proffered

by the Hardy Declaration is Exemption 7(E),

which protects “records or information

compiled for law enforcement purposes,”

that, if made public, “would disclose

techniques and procedures for law

enforcement investigations or prosecutions,

or would disclose guidelines for law

enforcement investigations or prosecutions

if [that] could reasonably be expected to risk

circumvention of the law.” 5 U.S.C.

§ 552(b)(7)(E). With respect to Exemption

7(E), the Hardy Declaration does identify

the records redacted or withheld as internal

e-mails, training slides, legal opinions and

interpretations of techniques, Standard

Operating

Procedures,

electronic

communications concerning investigations,

case write-ups, and miscellaneous reports.

(Hardy Decl. ¶ 69.) But in explaining the

FBI’s reasons for invoking Exemption 7(E),

the Hardy Declaration offers little more than

a generic assertion that disclosure “could

enable targets . . . to avoid detection or

develop countermeasures to circumvent”

law enforcement efforts. (Id.) The Court

regards such boilerplate as insufficient to

carry the FBI’s burden with respect to the

Exemption 7(E) withholdings.

E. Classified Declarations

Finally, the Court is also in receipt of two classified declarations, one from Diane Janosek of the NSA and one from an undisclosed declarant.

12

1. Motion to Strike
As previously noted, Plaintiffs have moved to strike the classified declarations. (See Pls.’ Strike Mem. 1.) In a FOIA action implicating national security interests, the Court may conduct in camera review of agency affidavits after “attempt[ing] to create as complete a public record as is possible.” Phillippi v. C.I.A., 546 F.2d 1009, 1013 (D.C. Cir. 1976). Although in camera review of agency affidavits “differs significantly from in camera review of the actual requested documents,” John Doe Corp. v. John Doe Agency, 850 F.2d 105, 110 (2d Cir. 1988), when national security 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) (internal quotation marks omitted). Nonetheless, “[a] court should only consider information ex parte and in camera that the agency is unable to make public if questions remain after the relevant issues have been identified by the agency’s public affidavits and have been tested by plaintiffs.” Wilner, 592 F.3d at 75-76.
In this case, the Court first considered the four public agency affidavits and attempted “to create as complete a public record as is possible,” Phillippi, 546 F.2d at 1013, by making “itemized findings” with respect to each affidavit, Halpern, 181 F.3d at 295. Finding the public affidavits insufficient, the Court deems it necessary to examine the classified declarations as well. See Amnesty Int’l USA v. C.I.A., 728 F. Supp. 2d 479, 507-08 (S.D.N.Y. 2010) (adopting a similar procedure). Accordingly, Plaintiffs’ motion to strike the classified declarations is denied.9
9 Plaintiffs move in the alternative for in camera review of the underlying agency records. (See Pls.’

2. Sufficiency of the Classified Declarations
At the close of summary judgment briefing, the Court was in receipt of four public agency affidavits and two wholly classified agency affidavits. In opposing Plaintiffs’ motion to strike, however, the government released a redacted version of the classified Janosek Declaration. (Ex Parte Declaration of Diane M. Janosek, June 30, 2011, Doc. No. 43 (“Ex Parte Janosek Declaration”).) Accordingly, the Court is now in receipt of a sealed, unredacted version of the classified Janosek Declaration and a second, wholly classified declaration.
Upon careful review of the foregoing submissions, the Court finds the classified declarations considerably more forthcoming, but ultimately insufficient to justify the relevant withholdings. Although the classified status of the documents precludes an itemized analysis here, the Court notes that the classified declarations share the deficiencies of the public declarations with respect to Plaintiffs’ requests for statistical data. For example, an unredacted paragraph of the classified Janosek Declaration avers that “[d]isclosure of statistical information would reveal the scope of NSA’s collection activities under the FAA,” and that such disclosure “could reasonably be expected to cause exceptionally grave damage to the national security” pursuant to Exemption 1. (Id. ¶ 17.) But it is far from clear to the Court why disclosure of the number of
Strike Mem. 1.) “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. Of Elec. Workers, AFL-CIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988). In light of the supplemental Vaughn submissions mandated below, the Court declines to conduct a comprehensive in camera review of the contested agency records at this stage of the litigation.

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United States citizens or residents subject to FAA surveillance logically reveals the scope of NSA activity. As noted above, agencies may not classify information simply to “conceal violations of law, inefficiency, or administrative error,” or to “prevent embarrassment” to the agency. Exec. Order No. 13,526 § 1.7(a). Without an actual explanation as to why disclosure “would reveal the scope of NSA’s collection activities,” the Court simply cannot engage in a meaningful de novo review as is required by law.
F. Additional Submissions
As an alternative to their motion to strike, Plaintiffs have requested full in camera review of the agency records withheld by Defendants. (See Pls.’ Strike Mem. 1-2.) When faced with conclusory or otherwise insufficient agency affidavits, “the district court will have a number of options for eliciting further detail from the government.” Halpern, 181 F.3d at 295. For example, the district court “may require supplemental Vaughn affidavits or may permit appellant further discovery.” Id. In the alternative, the district court “may offer the government the option of submitting additional Vaughn affidavits for in camera review, particularly if the government holds fast to its view that revealing any greater specificity in open court could compromise national security.” Id.
In this case, the Court is persuaded that limited in camera review is both necessary and appropriate in order to satisfy the Court’s “independent responsibility” to conduct de novo review. Goldberg, 818 F.2d at 77. However, the comprehensive review requested by Plaintiffs far exceeds what is required to fulfill this obligation. Accordingly, IT IS HEREBY ORDERED THAT, no later than December 23, 2011, the government shall submit for in camera

review Vaughn indices and, if necessary, supplementary Vaughn affidavits that include “a relatively detailed analysis [of the withheld material] in manageable segments” without resort to “conclusory and generalized allegations of exemptions.” Vaughn, 484 F.2d at 826. Ideally, the submissions should also provide “an indexing system [that] would subdivide the [withheld] document under consideration into manageable parts cross-referenced to the relevant portion of the [g]overnment’s justification.” Id. at 827. Although the Second Circuit has “eschewed rigid adherence to any particular indexing format under the Vaughn standard,” Halpern, 181 F.3d at 291, the government may wish to identify the Bates numbers of the responsive documents, the applicable document category from Plaintiffs’ FOIA request, as well as a specific explanation for why the document or documents at issue (including the requested statistical data) “logically falls within the claimed exemption,” Wilner, 592 F.3d at 73.
Obviously, the goal of the supplemental submissions is “to obtain a sufficient degree of detail so as to fulfill the purposes of the Vaughn affidavit,” Halpern, 181 F.3d at 295, by “forc[ing] the government to analyze carefully any material withheld” and “enabl[ing] the trial court to fulfill its duty of ruling on the applicability of the exemption,” Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987). Mindful that “it is bad law and bad policy to second-guess the predictive judgments made by the government’s intelligence agencies,” Wilner, 592 F.3d at 76 (internal quotation marks omitted), the Court requires the foregoing submissions only to fulfill its duty to conduct meaningful and effective de novo review.

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IV. CONCLUSION
For the reasons stated above, Plaintiffs' motion to strike is HEREBY DENIED; their motion in the alternative for in camera review is GRANTED IN PART and DENIED IN PART. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 38. The crossmotions for summary judgment, located at Doc. Nos. 31 and 35, will remain open pending the additional submissions set forth above.
Dated: November 15,2011 New York, New York
***
Plaintiffs are represented by Melissa Goodman and Alexander Abraham Abdo of the American Civil Liberties Union, 125 Broad Street, 18th Floor, New York, New York 10004; Bruce Johnson and Jennifer Arterburn of Davis Wright Tremaine LLP, 1201 Third Avenue, Suite 2200, Seattle, Washington 98101; Robert D. Balin and Samuel Bayard of Davis Wright Tremaine LLP, 1633 Broadway, New York, New York 10019; and Ronald Gary London of Davis Wright Tremaine LLP, 1919 Pennsylvania Avenue NW, Washington, DC 20006-3402. Defendants are represented by Benjamin H. Torrance, Carolina A. Fornos, and Louis Anthony Pellegrino of the United States Attorney's Office, Southern District of New York, 86 Chambers Street, New York, New York 10007.
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 Case 1:10-cv-04419-RJS Document 1 Filed 06/03/10 Page 1 of 29

T

JUDGE SULLIVAN

JtL

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LffiERTIES UNION FOUNDATION,

Plaintiffs,

v.

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; DEPARTMENT OF JUSTICE; NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE; DEPARTMENT OF DEFENSE,

Civil Actio ECF Case

Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF Preliminary Statement
1. In this Freedom of Infonnation Act ("FOIA") case, plaintiffs challenge the governmenfs failure to release records about the government's interpretation and implementation of the FISA Amendment Act of 2008 ("FAA"), Pub. L. No. 110-261 (2008), codified at 50 U.S.C. § 1881a et seq., a controversial piece of legislation through which Congress granted the executive branch virtually limitless power to collect Americans' international e-mails and telephone calls en masse, without a warrant, without suspicion ofany kind, and with only very limited judicial oversight. Although the FAA has been in operation for nearly two years and has remained the subject of widespread public concern and debate since its enactment - the public is almost entirely in the dark about how broadly the government has interpreted the law; how the surveillance powers granted by the law have been used; whether they have been abused; how many U.S citizens' and residents' communications have been collected; and what

Case 1:10-cv-04419-RJS Document 1 Filed 06/03/10 Page 2 of 29
safeguards are in place to prevent abuses. The little that is known about FAA implementation does not inspire public confidence. News reports suggest that the government has used its FAA powers to collect U.S. citizens' and residents' international communications by the millions and has used the FAA improperly to collect purely domestic communications as well.
2. The FAA requires the Attorney General, the Director ofNational Intelligence, the head of each agency that implements the FAA, as well as the Inspector Generals ofthose agencies, to produce periodic reports that assess, among other things, the interception, analysis, and dissemination of U.S. citizens' and residents' communications under the law; the sufficiency of and compliance with safeguards to protect U.S. citizens' and residents' privacy rights; and whether the sweeping FAA powers are necessary or effective. However, none of these reports, nor any portion ofthem, have been made public.
3. Nearly six months have elapsed since the American Civil Liberties Union and the American Civil Liberties Union Fo:undation (collectively "ACLU") filed FOIA requests (the "Requests") seeking records regarding the interpretation and implementation of the FAA from defendants Office of the Director ofNational Intelligence ("ODNI"), Department of Justice ("DOJ"), National Security Agency ("NSA"), and the Department of Defense ("DOD"). None of the agencies, however, has released any responsive records.
4. The records plaintiffs seek are urgently needed to fill an informational void about a topic of widespread public concern and to inform the ongoing national and congressional debate about the government's electronic surveillance powers. The FAA is not a permanent law; it is set to expire at the end of2012. Congress intentionally made this controversial law temporary so that it - and the public - could evaluate whether the radical changes the FAA wrought to the government's electronic spying regime were wise, necessary, working effectively
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in practice, and sufficiently protective of U.S. citizens' and residents' privacy rights. During the

course of the next year and a half, Congress must debate and resolve whether the FAA should

expire, be amended, or be extended. Release of the records sought here is essential for the public

meaningfully to participate in - or even understand - that debate. Plaintiffs are entitled to

expedited processing oftheir Requests and the prompt release of responsive records; to a waiver

of processing fees because the release of the requested records is in the "public interest"; and to a

limitation of processing fees because the ACLU is a "news media" requestor.

5. Plaintiffs seek an injunction requiring defendant agencies immediately to process

plaintiffs' Requests and to release responsive records. Plaintiffs also seek an order enjoining

defendants from assessing fees for the processing ofthe Requests.

Jurisdiction and Venue

6.

This Court has subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. §

552(a)(4)(A)(vii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331

and 5 U.S.C. §§701-706. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B).

Parties

7. Plaintiff American Civil Liberties Union is a nationwide, non-profit, non-partisan

50 1(c)(4) organization with over 500,000 members dedicated to the constitutional principles of

privacy, free speech, liberty, and equality.

8. Plaintiffthe American Civil Liberties Union Foundation ("ACLUF") is a separate

501(c)(3) organization that educates the public about civil liberties and employs lawyers who

provide legal representation free of charge in cases involving civil liberties. Among other things,

3

Case 1:10-cv-04419-RJS Document 1 Filed 06/03/10 Page 4 of 29
the ACLVF works to ensure transparency about the government's national security surveillance powers and practices that implicate civil liberties.
9. Defendant ODNI is a department of the executive branch of the U.S. government. The ODNI is an agency within the meaning of5 V.S.C. § 552(f)(1).
10. Defendant DOJ is a department of the executive branch ofthe V.S. government. The DOJ is an agency within the meaning of 5 U.S.C. § 552(£)(1).
11. Defendant NSA is a department of the executive branch ofthe V.S. government. The NSA is an agency within the meaning of 5 U.S.C. § 552(f)(l).
12. Defendant DOD is a department of the executive branch of the U.S. government. The DOD is an agency within the meaning of 5 U.S.C. § 552(f)(1).
Factual Background The FISA Amendments Act of2008 13. In December 2005 The New York Times revealed that soon after the September II terrorist attacks, former President George W. Bush authorized the NSA to conduct warrantless electronic surveillance of Americans inside the nation's borders even though the Foreign Intelligence Surveillance Act expressly prohibited the practice. The program operated until January 2007. 14. On July 10, 2008, former President Bush signed the FAA into law. This controversial piece of legislation expanded the executive branch's power to conduct warrantless and suspicionless surveillance ofAmericans' international communications. 15. The FAA allows the Attorney General and Director of National Intelligence ("DNI") to jointly authorize, for a period up to one year, surveillance targeted at people reasonably believed to be located outside the United States. While the act prohibits the
4

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government from intentionally targeting any person known to be located in the United States at the time communications are acquired, the act permits the Attorney General and DNI to authorize the mass acquisition of communications that originate or terminate inside the United States - Le. U.S. citizens' and residents' communications with people abroad.
16. To conduct these electronic acquisitions, the Attorney General and DNI must apply for an acquisition order from the Foreign Intelligence Surveillance Court ("FISC"). The Attorney General and DNI must provide to the FISC a certification attesting, among other things, that: (1) the acquisition is intended to target people reasonably believed to be abroad; (2) a significant purpose of the acquisition is to obtain foreign intelligence information; (3) they have submitted "targeting procedures" reasonably designed to ensure that the acquisition is limited to targeting people reasonably believed to be located outside the United States and to prevent the intentional acquisition of Americans' purely domestic communications; (4) they have submitted programmatic "minimization procedures" reasonably designed to minimize the acquisition and retention, and prohibit the dissemination of, certain information concerning U.S. citizens and residents; and (5) they have has adopted "guidelines" to ensure compliance with targeting and minimization procedures.
17. After reviewing the government's certification and its targeting and minimization procedures, the FISC may grant, grant with modification, or deny acquisition applications.
18. The FAA requires the Attorney General and the DNI to conduct a semi-annual assessment of compliance with FAA targeting and minimization procedures and guidelines and to provide those assessments to the FISC and certain congressional committees.
19. The FAA requires the head of each element ofthe intelligence community conducting FAA acquisitions to conduct an annual review to determine whether foreign
5

Case 1:10-cv-04419-RJS Document 1 Filed 06/03/10 Page 6 of 29
intelligence infonnation has been or will be obtained from the acquisition. The annual review must provide, among other things, the number of FAA surveillance targets that were later determined to be located in the United States; the number ofU.S. citizens and residents whose communications were acquired under the FAA or whose communications or identities were referenced in disseminated in intelligence reports; a description ofany procedures (such as minimization procedures) developed by the agency to assess the extent to which FAA acquisitions have collected the communications of U.S. citizens and residents and how the privacy rights of U.S citizens and residents are protected; and the results of any such assessments. These annual reviews must be provided to the FISC, the Attorney General, the DNI, and certain congressional committees.
20. The FAA authorizes the Inspector General of the Department ofJustice, as well as, the Inspector Generals of each element ofthe intelligence community authorized to acquire communications and infonnation under the FAA, to review compliance with FAA targeting and minimization procedures and guidelines. It also authorizes the Inspector Generals to review the number of FAA surveillance targets that were later detennined to be located in the United States, and the number ofU.S. citizens and residents whose communications were acquired under the FAA or whose communications or identities were referenced in disseminated in intelligence reports. Inspector General reviews are to be provided to the Attorney General, the DNI, and certain congressional committees.
21, The FAA is a temporary law that will expire at the end of2012. Public Concern about the FAA
22. The FAA - and the virtually limitless electronic surveillance power it gives the government - has been a significant matter ofpublic concern and media interest since before its
6

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passage to the present. See, e.g., Sean LengeIl, House Approves Update o/Bipartisan Spy Laws, Wash. Times, June 21, 2008; Peter Grier, White House Scores Key Victory on Government Eavesdropping, Christian Science Monitor, July 10, 2008; Eric Licbtblau, Senate Approves Bill to Broaden Wiretap Powers, N.Y. Times, July 10,2008; Ryan Singel, Bush Signs Spy Bill, ACLU Sues, Wired, July 10, 2008; Grant Gross, ACLU Files Lawsuit to Challenge Surveillance Law, PC World, July 10,2008; Antonio Vargast Ohama Defends Compromise on New FISA Bill,
Wash. Post, July 4,2008; Eric Lichtblau & James Risen, Officials Say u.s. Wiretaps Exceeded
Law, N.Y. Times, Apr. 15,2009; Joby Warrick, Problems in Wiretapping Bring Change, Wash. Post, Apr. 16, 2009; Pamela Heiss, Senate Panel to Probe Wiretapping Violations, Assoc. Press, Apr. 16,2009; Glenn Greenwald, The NYT's Predictable Revelation: New FISA Law Enabled Massive Abuses, Salon, Apr. 15,2009; James Risen & Eric Lichtblau, E-Mail Surveillance Renews Concerns in Congress, N.Y. Times, June 16,2009; Marc Ambinder, Pinwale and the New NSA Revelations, The Atlantic, June 16,2009; Kim Zetter, NSA Secret Database Ensnared President Clinton's Private E-mail, Wired, June 17,2009; James Bamford, The NSA is Still Listening to You, Salon, July 22,2009; NSA to Build Secretive Data Center in Utah, Assoc. Press, Oct. 23,2009; Marc Ambinder, Did Hoekstra Compromise A Sensitive Intelligence Program?, The Atlantic, Nov. 12,2009; David Kravets, Warrantless Wiretapping, Wired, Jan. 28,2010; James Bamford, Big Brother is Listening, The Atlantic, Mar. 24,2010; Ellen Nakashima, Group Challenging Enhanced Surveillance Law Faces Uphill Climb, Wash. Post, Apr. 19,2010; Julian Sanchez, FISA Applications Are Down But is Surveillance?, Cato Institute, May 11,2010.
23. The FAA also has been strongly criticized in many ofthe nation's leading editorial pages, from before its enactment to the present. See, e.g., Editorial, Mr. Bush v. the Bill
7

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ofRights, N.Y. Times, June 18,2008; Editorial, Compromising the Constitution, N.Y. Times, July 8, 2008; Editorial, Election-Year Spying Deal is Flawed, Overly Broad, USA Today, June 25,2008; Editorial, FISA Follies, Wash. Post, July 3,2008; Editorial, The Day o/the New Surveillance Law, N.Y. Times, July 11, 2008; Editorial, The Eavesdropping Continues, N.Y. Times, June 18,2009; Editorial, When it Comes to Terror] We Can't Tell You, N.Y. Times, Apr. 3,2010; Editorial, Spying, Civil Liberties, and the Courts, N.Y. Times, Apr. 16,2010.
24. Although the FAA does not expire until 2012, a number ofbills already have been introduced in Congress to alter or amend the FAA.
25. Despite this widespread concern, however, there is almost no publicly available information about the government's interpretation or implementation of its expanded surveillance powers under the FAA. The government has not disclosed, for example, how it has interpreted the scope of its FAA power; how it is using its FAA power; the extent to which it has used the FAA to engage in dragnet collection and analysis of e-mail, text, and voice traffic; whether it is abusing its FAA power; whether the abuses reported by the media continue; the scope of the privacy impact FAA surveillance has had, in practice, on U.S. citizens and residents; whether the minimal checks imposed on the goverrunent's FAA spying power have proved inadequate; or the results of any of the reports and assessments required by the FAA.
26. The scarcity of publicly-available infonnation about the FAA in operation has hindered an infonned public debate on the subject. This problem will only grow more acute once Congress begins debating whether the FAA should be repealed, amended, or extended in advance of the Act's sunset in 2012.
8

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The FOIA Requests
The Requested Records
27. On November 18,2009, the ACLU filed FOIA requests with defendants ODNI,
DOJ, NSA, and DOD seeking the release of records pertaining to the interpretation and
implementation of the FAA. A copy ofthe Request is attached hereto as Exhibit A.
28. The Requests sought seven categories ofrecords created since July 10,2008
pertaining to:
• The number of FAA acquisition applications submitted to the FISC, as well as the number of acquisition applications the FISC has granted, granted with modification, or rejected.
• The number of U.S. citizens and residents whose communications have been collected, intercepted, targeted, disseminated, or referenced in intelligence reports pursuant to FAA acquisition orders, as well as the number ofFAA surveillance targets later detennined be located within the United States.
• The collection, analysis, or dissemination ofpurely domestic communications pursuant to FAA acquisition orders.
• Legal memoranda (including Office of Legal Counsel memoranda), procedures, policies, directives, practices, guidance, or guidelines about FAA surveillance; the scope of authority granted by the FAA; implementation ofthe FAA; targeting and minimization procedures adopted pursuant to the FAA; and the interception, collection, analysis, or dissemination of U.S. citizens' or residents' communications pursuant to the FAA.
• Inter- or intra-agency correspondence about the scope of authority granted by the FAA; legal interpretations of the FAA; or rules governing the interception, collection, analysis, or dissemination of U.S. citizens' and residents' communications.
• Reports, assessments, or reviews issued or conducted by the Attorney General, DNI, agency heads, or Inspector Generals pursuant to, or mandated by, the FAA.
• Complaints about, investigations of, or disciplinary actions related to surveillance conducted pursuant to the FAA.
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Reguest for Expedited Processing 29. Plaintiffs sought expedited processing of the Requests on the grounds that the records are "urgently needed" by an organization "primarily engaged in disseminating information" in order "to inform the public about actual or alleged Federal government activity." Plaintiffs also sought expedited processing on the grounds that 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," and to a "breaking news story of genera] public interest." 30. In the Requests, plaintiffs explained that the records sought were urgently needed to inform the public about the government's interpretation and implementation ofa controversial federal statute that seriously impacts American's privacy and free speech rights, and to infonn the ongoing public and congressional debate about whether the governmenfs FAA-derived electronic surveillance powers should be narrowed, amended, or subject to greater oversight. Plaintiffs also explained that the ACLU is "primarily engaged in disseminating information" to the public under the FOIA because obtaining infonnation about government activity, analyzing that information, and widely publishing and disseminating that infonnation to the press and public is a critical and substantial component ofthe ACLU's work and one ofits primary activities. Plaintiffs described the ACLU's regular means ofdistributing and publicizing information, such as information obtained through FOIA requests, which include: a paper newsletter distributed to approximately 450,000 people; a bi-weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely-read blog; a heavily-visited website, including searchable databases of
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documents obtained through FOIA requests and documents interpreting and commenting on FOIA documents; and a television series on civil liberties issues.
Request for a Public Interest Fee Waiver 31. Plaintiffs sought a waiver of processing fees on the ground that disclosure of the requested records is in the "public interest" because it is "likely to contribute significantly to the public understanding ofthe operations or activities ofthe government." 32. In the Requests, plaintiffs explained that disclosure ofthe requested records would contribute significantly to the public's understanding of the government's interpretation and implementation of its electronic surveillance powers under the FAA, including the impact the FAA has had on the privacy and speech rights of U.S. citizens and residents. The Requests also stated that the ACLU did not seek disclosure in order to further any commercial interest because the ACLU summarizes, explains, and disseminates information it gathers through the FOIA at no cost to the pUblic. Request for a Limitation of Processing Fees Based on News Media Requestor Status 33. Plaintiffs sought a limitation ofprocessing fees on the ground that the ACLU qualifies as a "news media" requestor. 34. The Requests explained that the ACLU is a news media requestor for the purposes of the FOJA because it is an entity that gathers information ofpotential interest to a segment ofthe public, uses its editorial skills to turn raw materials into a distinct work, and distributes that work to an audience. The Requests described the ACLU's publishing activities, which include the publication of electronic and paper newsletters, news briefs, reports, books, fact sheets, pamphlets, and other educational and infonnational materials, as well as the maintenance of an extensive website and a heavily trafficked blog.
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Agency Responses 35. None of the defendants has disclosed any records responsive to the Requests.
Office of the Director of National Intelligence 36. By letter dated December 15, 2009, the ODNI denied plaintiffs' request for expedited processing on the grounds that the request did not meet the agency's defmition of "compelling need," which exists where the "matter involves an imminent threat to the life or physical safety of an individual" or when "a person primarily engaged in disseminating information makes the request and the request is relevant to a subject of public urgency concerning actual or alleged Federal government activity." Beyond this, the ODNI did not explain the basis for the denial. 37. By letter dated December 17,2009 plaintiffs timely appealed the ODNI's denial of their request for expedited processing.
38. By letter dated February 4,2010, the ODNI rejected plaintiffs' appeal,
upholding its determination to deny expedited processing. 39. The ODNI has not made a detennination regarding plaintiffs' request for a
waiver or limitation of processing fees. Department ofJustice
40. By letter dated November 23,2009, the DOJ Office of the Inspector General ("DOJ OIG") acknowledged receipt of the Requests.
41. By letter dated November 30, 2009, the DOJ referred the Requests to DOJ components Office of Legal Counsel ("OLC"), National Security Division ("NSD"), the Federal Bureau of Investigations ("FBI"), and the Federal Bureau ofPrisons ("BOP"). Plaintiffs believe that DOJ mistakenly referred the Requests to the BOP rather than the FBI. DOJ's November 30,
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2009, letter stated that the Requests had been referred to the FBI and the NSD. The "ReferraVAction Slip" that accompanied that letter, however, indicated that the Requests had been referred to the OLe, NSD, and BOP. The BOP granted plaintiffs' request for expedited processing, promptly conducted a search, and informed plaintiffs that it had no responsive records.
42. By Jetter dated January 6,2010, the DOJ OIG stated that it had processed plaintiffs' Requests and had located responsive records. It found, however, that the responsive records "originated with other components listed in [the] FOlA request." Because "those components [were] processing [the] request and [were] already in receipt of such documents" the DOJ OIG would "not be making a referral to those components," The letter also advised that "no other documents were located in the OIG."
43. By letter dated January 11,2009, the DOJ re-referred the Requests to the FBI. This letter was misdated. Plaintiffs received the letter in January 2010.
44. Plaintiffs have never received any further response or records from DOJ components OLC, NSD, or FBI.
National Security Agency 45. By letter dated November 24,2009, the NSA denied plaintiffs' request for expedited processing on the grounds that plaintiffs were not "primarily engaged in disseminating information" because this was not the ACLU's "primary" activity; the requested records did not relate to a "breaking news story" because the topic already had received "widespread coverage and attention"; and the information would not "lose its value if not processed on an expedited basis. n The letter acknowledged that the NSA had "approved expedited processing for a previous request [the ACLUJ had submitted/' but stated that it had granted expedited processing
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"based solely on the urgency of the infonnation sought" and had "failed to first address whether the ACLU was organized primarily to disseminate news."
46. By letter dated December 17,2009 plaintiffs timely appealed the NSA's denial of their request for expedited processing.
47. By letter dated January 15,2010, the NSA rejected plaintiffs' appeal, upholding its detennination to deny expedited processing.
48. The NSA has not made a detennination regarding plaintiffs' request for a waiver or limitation of processing fees.
Department of Defense 49. By letter dated November 24,2009, the DOD Office of Inspector General ("DOD DIG") denied plaintiffs' request for expedited processing on the grounds that the ACLU does not "publish[] or disseminat[e] information as its primary activity" and because the information sought would not "lose its value if not processed on an expedited basis." The Jetter also stated that the DOD 010 would not make a detennination on plaintiffs' request for a public interest fee waiver until the search for records had been completed but that the DOD 010 was rejecting plaintiffs' request for "news media" fee status, placing plaintiffs in the "other" fee category. The letter provided no explanation as to why the DOD OIG had rejected plaintiffs' news media fee limitation request. The letter also stated that the DOD 010 would not "process [the] request beyond the two hours of [free] search time and 100 pages of records" because plaintiffs had not "indicated a willingness to pay fees." The letter requested that plaintiffs submit a "written commitment as to the amount of fees that [they] are willing to pay in order to process this request beyond the two hours of search time and 100 pages ofrecords." 50. By letter dated December 4,2009, plaintiffs addressed the DOD OIO's deferral of
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their "public interest" fee waiver request. In the letter, plaintiffs objected to the DOD OIG's "practice of evaluating fee waiver requests only after a search and assessment of the 'volume and nature' of the responsive records," and to the DOD DIG's practice of"requiring a written commitment to pay fees prior to determining whether to grant a request for fee waiver."
51. By letter dated December 17,2009, plaintiffs timely appealed the DOD OIG's denial of their requests for expedited processing and for a news media processing fee limitation.
52. The statutory deadline for deciding appeals has passed but the DOD OIG has not issued a determination on plaintiffs' appeal.
Causes of Action 53. Defendants' failure to timely respond to the Requests violates the FOIA, 5 U.S.C. § 552(a)(6)(A), and defendants' corresponding regulations. 54. Defendants' failure to make promptly available the records sought by the Requests violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and defendants' corresponding regulations. 55. Defendants' failure to expedite processing of the Requests violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and defendants' corresponding regulations. 56. Defendants' failure to make a reasonable effort to search for records responsive to the Requests violates the FOIA, 5 U.S.C. § 552(a)(3)(C), and defendants' corresponding regulations .. 57. Defendant DOD's failure to grant plaintiffs' request for a limitation offees violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(ii){II), and defendants' corresponding regulations.
Requested Relief
WHEREFORE, plaintiffs respectfully request that this Court:
1. Order defendants immediately to process all requested records;
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2. Order defendants to conduct a thorough search for all responsive records; 3. Order defendants promptly to disclose the requested records in their entirety, and make
copies available to plaintiffs; 4. Enjoin defendants from charging plaintiffs fees for the processing oftheir Requests; 5. Award plaintiffs costs and reasonable attorneys' fees incurred in this action; and 6. Grant such other relief as the Court may deem just and proper.
Re~
MELISSA GOODMAN (MG-7844) JAMEEL JAFFER OJ-4653) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Phone: 212-549-2500 Fax: 212-549-2654 CHRISTOPHER DUNN (CD-3991) ARTHUR EISENBERG (AE-2012) New York Civil Liberties- Union 125 Broad Street, 19th Floor New York, New York 10004 June 3, 2010
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Exhibit A

I NATIONAL SECURITY Case PROJECT 1:10-cv-04419-RJS Document 1 AMEftlCAN CIVIL LIBERTIES UNION

Filed 06/03/10

Page 18 of 29

November 18,2009

FOIAIPA Mail Referral Unit Department of Justice Room 115 LOC Building Washington, D.C. 20530-0001

Office of the Inspector General Department of Justice 950 Pennsylvania Avenue, N.W., Room 4726 Washington, D.C. 20530-0001

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

Office of Legal Counsel Room 5515, 950 Pennsylvania Avenue, NW Department of Justice Washington, DC 20530-0001 (202) 514-2038
Office of the Director of National Intelligence (ODNI) Washington, D.C. 20511
Office of the Director of National Intelligence (ODNI) Attn: Office of the Inspector General Washington, D.C. 20511
National Security Agency Attn: FOIAIPA Office (DC34) 9800 Savage Road, Suite 6248 Ft. Mead, MD 20755-6248

FOIA Requester Service Center Department of Defense Office of the Inspector General 400 Army Navy Drive, Suite 1021 Arlington, VA 22202-4704

Re: Request Under Freedom ofInformation Act/Expedited Processing Requested
To Whom It May Concern:
This letter constitutes a request ("Request") by the American Civil Liberties Union and the American Civil Liberties Foundation (collectively

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AMERICAN CIVIL LIBERTIES UNION FOUNDATION

"ACLU") under the Freedom ofInformation Act ("ForA"), 5 U.S.C. § 552, the Department of Justice implementing regulations, 28 C.F.R. § 16.1, the Department of Defense implementing regulations, 32 C.F.R. § 286.1, and the Office ofthe Director of National Intelligence implementing regulations, 32 C.F.R. § 1700.1 The Request is submitted by the American Civil Liberties Union Foundation and the American Civil Liberties Union (collectively, the "ACLU,,).l
On July 10,2008, President Bush signed into law the Foreign Intelligence Surveillance Act Amendments Act of 2008 ("FISA Amendments Act" or "FAA"). This controversial piece of legislation not only effectively legalized the secret warrantless surveillance program that President Bush had authorized in late 2001,2 it gave the National Security Agency ("NSA") new power to conduct dragnet surveillance of Americans' international telephone calls and e-mails. The FAA gives the government virtually limitless power to collect Americans' international cornmunications en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight. The massive electronic surveillance power the FAA places in the hands of executive agencies implicates core privacy and free-speech concerns for all Americans.
The FAA has now been in effect for more than one year. However, the public remains largely in the dark about how the government has interpreted and actually implemented its sweeping spying power under the FAA.
Furthermore, the scant information that has surfaced regarding implementation of the FAA is troubling. News reports suggest that the government has interpreted the FAA authority broadly to permit mass collection of U.S. cornmunications, and that the NSA has systematically abused its (already broad) FAA power. See Eric Lichtblau & James Risen,
Officials Say u.s. Wiretaps Exceeded Law, N.Y. Times, Apr. 15,2009
I 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.
2 Media reports in 2005 first revealed that soon after the September II terrorist attacks, President Bush authorized the NSA to conduct warrantIess electronic surveillance of Americans inside the nation's borders even though the Foreign Intelligence Surveillance Act expressly prohibited the practice. See, e.g., James Risen and Eric Lichtblau, Bush Let Us. Spy on Callers Without Courts, N.Y. Times, Dec. 16,2005
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(stating that the NSA's "overcollection" of American' communications has been "significant and systemic"); James Risen & Eric Lichtblau, E-Mail Surveillance Renews Concerns in Congress, N.Y. Times, June 16,2009 (highlighting the NSA's over-collection of Americans' personal e-mails). This Request seeks records that will illuminate how agencies responsible for implementing the FAA are interpreting this invasive electronic surveillance power; how the FAA spying power is being used; and what safeguards are in place to prevent abuse of Americans' privacy rights.
Requested Records
I. Any and all records created since July 10, 2008 indicating the number of:
A. Acquisition applications submitted to the Foreign Intelligence Surveillance Court ("FISC") pursuant to Section 702 ofthe FISA Amendments Act of2008, Pub. L. No. 110-261 (2008).3
B. Acquisition orders the FISC has issued pursuant to Section 702 of the FAA.
C. Acquisition orders the FISC has granted with modifications. D. Acquisition applications the FISC has granted without modifications. E. Acquisition applications the FISC has rejected.
2. Any and all records created since July 10, 2008 indicating the number of:
A. U.S. persons4 whose communications have been collected or intercepted pursuant to Section 702 of the FAA.
B. U.S. persons who have been targeted by surveillance conducted pursuant to Section 702 ofthe FAA.
C. Targets of surveillance conducted pursuant to Section 702 of the FAA who were later determined to be located in the United States.
D. U.S. persons who have been identified in disseminated intelligence reports resulting from or related to surveillance conducted pursuant to Section 702 of the FAA.
E. Disseminated intelligence reports resulting from or related to surveillance conducted pursuant to Section 702 of the FAA that contain a reference to a U.S. person's identity.

3 The tenn "acquisition applications" means requests made by the Attorney General and/or the Director of National Intelligence for FISC approval of surveillance "targeting ... persons reasonably believed to be located outside the United States to acquire foreign intelligence information" under authority granted by Section 702 of the FAA. Requesters to do not seek any records pertaining to acquisitions or surveillance conducted pursuant to other sections of the FAA or the Foreign Intelligence Surveillance Act more generally. 4 The term U.S. person means any U.S. citizen or legal permanent resident.
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I 3. Any and all records created since July 10,2008 pertaining to the
collection, analysis, or dissemination of purely domestic communications pursuant to Section 702 of the FAA.s
4. Any and all legal memoranda (including Office of Legal Counsel memoranda), procedures, policies, directives, practices, guidance, or guidelines created since July 10, 2008 pertaining to:
A. Surveillance conducted under Section 702 of the FAA. B. The scope of authority granted by Section 702 of the FAA. C. The implementation of Section 702 of the FAA. D. Targeting and minimization procedures adopted pursuant to
Section 702 of the FAA. E. Interception, collection, analysis, dissemination, or analysis of U.S.
persons' communications pursuant to Section 702 of the FAA (whether or not a U.S. person is the target of the interception).
5. Any and all inter or intra-agency correspondence pertaining to the scope of authority granted by Section 702 of the FAA, legal interpretations of any part of Section 702 of the FAA, or rules governing the interception, collection, analysis, or dissemination ofD.S. communications.
6. Any and all reports, assessments, or reviews issued or conducted pursuant to Section 702(1) of the FAA since July 10,2008, including any by the Attorney General, Director of National Intelligence, the head of another intelligence agency, the Inspector General of the Department of Justice, or the Inspector General of any other intelligence agency.
7. Any and all records created since July 10, 2008 concerning complaints about, investigations of, or disciplinary actions related to surveillance conducted pursuant to Section 702 of the FAA.
I. Application for Expedited Processing
We request expedited processing pursuant to 5 D.S.C. § 552(a)(6)(E); 28 C.F.R. § 16.5(d); 32 C.F.R. § 286.4(d)(3); and 32 C.F.R. § 1700.12. There is a "compelling need" for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged Federal government activity. 5 U.S.C. § 552(a)(6)(E)(v); see also 28 C.F.R. § 16.5(d)(l)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1700.12(c)(2). In addition, 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," 28 C.F.R. § 16.5(d)(I)(iv), as well
5 The tenn "purely domestic communication" means a communication where both parties to the communication are located in the United States.
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as a "breaking news story of general public interest," 32 C.F.R. § 286.4(d)(3)(ii)(A).
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. § l6.5(d)(I)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1700.2(h)(4). Obtaining 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 ACLUv. Dep't ofJustice, 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».
The ACLU regularly publishes a newsletter at least twice a year that reports on and analyzes civil liberties-related current events. The newsletter is widely disseminated to approximately 450,000 people. The ACLU also publishes a bi-weekly electronic newsletter, which is distributed to subscribers (both ACLU members and non-members) bye-mail. The electronic newsletter is widely disseminated to approximately 300,000 people. Both of these newsletters often include descriptions and analysis of information obtained through FOIA.
The ACLU regularly publishes reports about government activity and civil liberties issues based on its analysis of information derived from various sources, including information obtained from the government through FOIA. This material is broadly circulated to the public and widely available to everyone for no cost or, sometimes, for a small fee. Since 2007 alone, ACLU national projects have published and disseminated over 30 reports. Many ACLU reports include description and analysis of government documents obtained through FOIA.6 The ACLU also regularly publishes books, "know your rights" publications, fact sheets, and educational brochures and pamphlets designed to educate the public about civil liberties issues and government policies that implicate civil rights and liberties.7
6 See. e.g., Reclaiming Patriotism, (March 2009), available at http://www.aclu.orglpdfs/safefree/patriot report 20090310.pdf; The Excluded: Ideological Exclusion and the War on Ideas (Oct. 2007), available at http://www.aclu.orglpdfs/safefree/the excluded report.pdf; History Repeated: The Dangers ofDomestic Spying by Federal Law Enforcement (May 2007), available at http://www.aclu.org/images/asset upload file893 29902.pdf; No Real Threat: The Pentagon's Secret Database on Peaceful Protest (Jan. 2007), available at http://www.aclu.orglpdfs/safefree/spyfiles_norealthreat_20070 117.pdf; 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/FilesPDFs/spiesJeport.pdf.
7 A recent search of Amazon.com produced over 60 books published by the ACLU.
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The ACLU operates a widely-read blog where original editorial content reporting on and analyzing civil rights and civil liberties news is posted daily. See http://blog.aclu.org/. The ACLU also creates and disseminates original editorial and educational content on civil rights and civil liberties news through multi-media projects, including videos, podcasts, and interactive features. See http://www.aclu.orglmultimedialindex.html. The ACLU has also produced an in-depth television series on civil liberties called "The Freedom Files." See http://aclu.tv/.
The ACLU also publishes, analyzes, and disseminates infonnation through its heavily visited website, www.aclu.org. The website addresses civil rights and civil liberties issues in depth, provides features on civil rights and civil liberties issues in the news, and contains many thousands of documents relating 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 FOrA about the issue; and more indepth analytic and educational multi-media features on the issue.8
The ACLU website includes many features on infonnation obtained through the FOIA.9 For example, the ACLU's "Torture FOIA" webpage, www.aclu.org/torturefoia, contains commentary about the ACLU's FOIA request, press releases, analysis of the FOrA documents, an advanced search engine pennitting webpage visitors to search the documents obtained through the FOIA, and advises that the ACLU in collaboration with Columbia
8 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 ofNSLs; 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 ofNSLs; the ACLU's policy analysis and recommendations for reform of the NSL power; charts with analyzed data about the government's use ofNSL; myths and facts documents; and links to information and analysis ofrelated issues.
9 See, e.g., www.aclu.org/torturefoia; http://www.aclu.org/olcmemos/; http://www.aclu.org/safefree/torture/csrtfoia.htrnl; http://www.aclu.org/natsec/foiaisearch.html; http://www.aclu.org/safefree/nsaspying/30022res20060207.htrnl; www.aclu.org/patriotfoia; www.aclu.org/spyfiles; http://www.aclu.org/safefree/nationalsecurityletters/32140res20071 0 ll.htrnl; www.aclu.org/exclusion.
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University Press has published a book about the documents obtained through the ForA.
The ACLU has also published a number of charts that collect, summarize, and analyze information it has obtained through ForA. For example, through compilation and analysis of information gathered from various sources - including information obtained from the government through FOIA - the ACLU has created an original 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 which 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. 10 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 ForAY
The ACLU plans to analyze, publish, and disseminate to the public the information gathered through this Request. The records requested are not sought for commercial use and the Requesters plan to disseminate the information disclosed as a result of this Request to the public at no cost.
Furthermore, the records sought are urgently needed to inform the public about actual or alleged federal government activity. The records sought pertain to the NSA's (and perhaps other U.S. agencies) virtually unchecked collection of Americans' international communications. The records sought also pertain to the government's interpretation and implementation of a controversial federal statute that seriously impacts American's privacy and free speech rights. The records sought are urgently needed because almost nothing is known about how the government has interpreted the scope of its intrusive FAA surveillance powers, how it has actually used those powers, and how many Americans' have been affected. Moreover, this information is vitally needed to inform the ongoing public and congressional debate about whether the government's electronic surveillance power should be narrowed or surveillance laws should be amended.
The requested records 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)(l )(iv), and to a "breaking news story of general public interest that concerns actual or alleged Federal government activity." See 32 C.F.R. § 286.4(d)(3)(ii)(A); 28 C.F.R. § 16.5(d)(l)(ii).
10 The chart is available at http://www.aclu.orgisafefree/generallolcmemos_chart.pdf.
II The chart is available at http://www.aclu.orgisafefree/nationalsecurityletters/releasedlnsl_stats.pdf.
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The government's intrusive electronic surveillance power has been a significant matter of public concern (and media interest) for many years, particularly after the revelation ofthe NSA's warrantless wiretapping program. The legislation that emerged out of that controversy - the FAA has been the subject of widespread interest and debate since the moment it was introduced. Indeed, in the weeks leading up to its enactment, the law was the subject of particularly intense coverage. See, e.g., Sean Lengell, House Approves Update ofBipartisan Spy Laws, Wash. Times, June 21, 2008; Editorial, Mr. Bush v. the Bill ofRights, N.Y. Times, June 18,2008 (stating that "all indications are" that many of the FAA's provisions are "both unnecessary and a threat to the Bill of Rights"). The law was also strongly criticized in many of the nation's leading editorial pages. See, e.g., Editorial, Compromising the Constitution, N.Y. Times, July 8, 2008 (stating that the FAA would "make it easier to spy on Americans at home, reduce the courts' powers and grant immunity to the companies that turned over Americans' private communications without warrant"); Editorial, Election-Year Spying Deal is Flawed, Overly Broad, USA Today, June 25, 2008.
The eventual passage and enactment ofthe FAA garnered similarly widespread coverage and attention. See Peter Grier, White House Scores Key Victory on Government Eavesdropping, Christian Science Monitor, July 10, 2008; Eric Lichtblau, Senate Approves Bill to Broaden Wiretap Powers, N.Y. Times, July 10, 2008; Shailagh Murray, Obama Joins Fellow Senators in Passing New Wiretapping Measure, Wash. Post, July 10,2008; Antonio Vargas, Obama Defends Compromise on New FISA Bill, Wash. Post, July 4, 2008. Major editorial pages continued to weigh in on the law. See, e.g., Editorial, The Day ofthe New Surveillance Law, N.Y. Times, July 11,2008; Editorial, FISA Follies, Wash. Post, July 3, 2008. The immediate filing of a constitutional challenge to the law was the subject of widespread media interest as well. See Ryan Singel, Bush Signs Spy Bill, ACLU Sues, Wired, July 10,2008; Grant Gross, ACLU Files Lawsuit to Challenge Surveillance Law, PC World, July 10,2008.
Media attention to the FAA surged, once again, in April 2009 when The New York Times reported that the NSA was using its FAA powers to vacuum up U.S. communications by the millions, that it was potentially abusing its sweeping FAA power, and that it was possibly "overcollecting" purely domestic communications in a systematic manner. See Eric Lichtblau & James Risen, Officials Say Us. Wiretaps Exceeded Law, N.Y. Times, Apr. 15,2009; see also Joby Warrick, Problems in Wiretapping Bring Change, Wash. Post, Apr. 16,2009; Pamela Heiss, Senate Panel to Probe Wiretapping Violations, Assoc. Press, Apr. 16,2009; Glenn Greenwald, The NIT's Predictable Revelation: New FISA Law Enabled Massive Abuses, Salon, Apr. 15,2009.

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Early this summer, similar reports that the NSA was "over-collecting" Americans' personal e-mails again drew significant media attention. See James Risen & Eric Lichtblau, E-Mail Surveillance Renews Concerns in Congress, N.Y. Times, June 16,2009; see also Editorial, The Eavesdropping Continues, N.Y. Times, June 18,2009; Kim Zetter, NSA Secret Database Ensnared President Clinton's Private E-mail, Wired, June 17,2009; Marc Ambinder, Pinwale and the New NSA Revelations, The Atlantic Online, June 16,2009.
In the past month, there has been a resurgence of public interest, speculation, and concern about the FAA and the NSA's massive surveillance capabilities. It was sparked by revelation ofthe construction of a 1 millionsquare-foot data warehouse designed to house intercepted communications and potentially serve as a clearinghouse for both domestic and international monitoring. See Alfred M. McCoy, Surveillance State, US.A., CBS News, Nov. 12,2009 (op-ed); Connor Boyack, Do We Really Want an NSA Data Center in Utah, The Salt Lake Tribune, Nov. 5, 2009; NSA Confirms Plansfor Utah Data Center, UPI, Oct. 24, 2009; NSA to Build Secretive Data Center in Utah, Assoc. Press, Oct. 23,2009; James Bamford, The NSA is Still Listening to You, Salon, July 22, 2009. Many ofthese stories highlighted how little is known about the government's surveillance of Americans' communications and personal records, particularly under the FAA. Recent public comments by Representative Hoekstra about electronic surveillance ofthe Ft. Hood shooting suspect has also sparked renewed speculation about FAA surveillance powers. See, e.g., Marc Ambinder, Did Hoekstra Compromise A Sensitive Intelligence Program?, The Atlantic Online, Nov. 12,2009 (speculating about dragnet surveillance by the NSA).
Moreover, electronic surveillance - and questions about the scope (and wisdom) of many recent pieces of surveillance legislation - remain hotly debated in Congress. In the past two months, discussions over the fate of certain surveillance-related provisions of the USA Patriot Act that are set to expire at the end of this year have attracted significant attention from the media. See Daphne Eviatar, Patriot Act Amendments Disappoint Civil Libertarians, Wash. Ind., Oct. 1,2009; Editorial, Reining in the Patriot Act, Phila. Inquirer, Sept. 21, 2009; Charlie Savage, Battle Looms Over the Patriot Act, N.Y. Times, Sept. 20, 2009; Carrie Johnson and Ellen Nakashima, White House Seeks Renewal ofSurveillance Laws, Wash. Post, Sept. 16,2009.
The Patriot Act debate has included some debate about electronic surveillance as well. In fact, a handful of Patriot Act reauthorization bills and amendments have sought to narrow or alter the FISA Amendment Act of 2008. See, e.g., Daphne Eviatar, Bill Introduced to Repeal Telecom Immunity, Wash. Ind., Sept. 29, 2009; Grant Gross, Senators Want to End Telecom Immunity for Spying Program, PC World, Sept. 29, 2009; David Kravets,

9

Case 1:10-cv-04419-RJS Document 1 Filed 06/03/10 Page 27 of 29

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Telco Spy Immunity Up for Grabs, Wired, Sept. 24, 2009; Wendy Kaminer, The Justice Act, Atlantic, Sept. 18, 2009.
As the sustained media interest concerning the scope and privacy implications of the government's electronic surveillance power clearly attests, the implementation (and potential abuse) of the FAA, constitutes 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). Moreover, the recent attention to and speculation about the scope of the NSA' s monitoring power and its data analysis and storage capabilities constitutes a "breaking news story of general public interest." 32 C.F.R. § 286.4(d)(3)(ii)(A).
Accordingly, expedited processing is appropriate in this case.
Application for Waiver or Limitation of Fees
We request a waiver of document search, review, and duplication fees on the grounds that disclosure of the requested records is in the public interest and because disclosure is "likely to contribute significantly to the public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." See 5 U.S.C. § 552(a)(4)(A)(iii); 32 C.F.R. § 286.28(d); 28 C.F.R. § 16.11(k); 32 C.F.R. § 1700.6(b).
As discussed above, numerous news accounts reflect the considerable public interest in the records we seek. Given the ongoing and widespread media attention to this issue, the records sought in the instant Request will significantly contribute to public understanding of the operations and activities of the NSA and other agencies that are responsible for implementing the FAA. See 32 C.F.R. § 286.28(d); 28 C.F.R. § 16.l1(k)(I)(i); 32 C.F.R. § 1700.6(b)(2). Given that very little is known about how the government has interpreted and implemented its FAA power in practice, the records sought are certain to contribute significantly to the public's understanding of the issue. In addition, disclosure is not in the ACLU's commercial interest. As described above, any information disclosed by the ACLU as a result ofthis ForA request will be available to the public at no cost. Thus, a fee waiver would fulfill Congress's legislative intent in amending ForA. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. CiT. 2003) ("Congress amended ForA to ensure that it be 'liberally construed in favor of waivers for noncommercial requesters. ''') (citation omitted).
We also request a waiver of document reproduction fees on the grounds that the ACLU qualifies as a "representative of the news media" and the records are not sought for commercial use. 32 C.F.R. § 286.28(e)(7); 28 C.F.R. § 16.11(d); 32 C.F.R. § 1700.6(i)(2). The ACLU meets the statutory
10

Case 1:10-cv-04419-RJS Document 1 Filed 06/03/10 Page 28 of 29

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

and regulatory definitions of a "representative of the news media" because it is an "entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum 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 'I Security Archive v. Dep 't ofDefense, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf ACLU v. Dep't ofJustice, 321 F. Supp. 2d 24,30 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "primarily engaged in disseminating information"). The ACLU is therefore a "representative ofthe news media" for the same reasons it is "primarily engaged in the dissemination of information." 12
Notably, courts have found other organizations whose mission, function, publishing, and public education activities are similar in kind to the ACLU's to be "representatives of the news media." See, e.g., Elec. Privacy Info. Ctr. v. Dep't ofDefense, 241 F. Supp. 2d 5,10-15 (D.D.C. 2003) (finding non-profit public interest group that disseminated an electronic newsletter and published books was a "representative of the media" for purposes ofFOIA); Nat'! Security Archive, 880 F.2d at 1387; Judicial Watch, Inc. v. Dep't ofJustice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (finding Judicial Watch, self-described as a "public interest law firm," a news media requester). 13
12 On account of these factors, fees associated with responding to FOIA requests are regularly waived for the ACLU. For example, 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 United States 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 of2004. 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 ofinvestigation, the Office of Intelligence Policy and Review, and the Office ofinformation 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.
13COurts have founds these organizations to be "representatives of the news media" even though they engage in litigation and lobbying activities beyond their dissemination of information/public education activities. See, e.g., Elec. Privacy Info. Ctr., 241 F. Supp. 2d 5; Nat 'I Sec. Archive, 880 F.2d at 1387; see also Judicial Watch, Inc., 133 F. Supp. 2d at 53-54; see also Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (fmding Leadership Conference to be primarily engaged in disseminating information even though it engages in substantial amounts of legislative advocacy beyond its publication and public education functions).
11

Case 1:10-cv-04419-RJS Document 1 Filed 06/03/10 Page 29 of 29

AMERICAN CIVil LIBERTIES UNION FOUNDATION

* * *
Pursuant to the applicable regulations and statute, we expect the determination regarding expedited processing within 10 calendar days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 32 C.F.R. § 286.4(d)(3).

If the Request is denied in whole or in part, we ask that you justify all withholdings by reference to specific exemptions to FOIA. We expect the release of 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.

Thank you for your prompt attention to this matter. Please furnish all applicable records to:

Melissa Goodman American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004

I affirm that the information provided supporting the request for expedited processing is true and correct to the best of my knowledge and belief.

~i~ S,",=ly,

~

elissa Goodriian

Staff Attorney

American Civil Liberties Union Foundation

125 Broad Street, 18th Floor

New York, NY 10004

Tel. 212-549-2622

12

 
 Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs,
-v-
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, et al.,
Defendants.

USDSSDNY DOCUMENT ELECTRONICALLY FILED DOC#: ______r-~--DATE FILED: 3/e,ol z_ot'L
No. 10 Civ. 4419 (RJS) MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge: Plaintiffs bring this Freedom of Information Act ("FOIA") suit seeking disclosure and
expedited processing of records relating to federal agencies' interpretation and implementation of the FISA Amendments Act of 2008 ("FAA''). Before the Court are the parties' cross-motions for summary judgment. By Opinion and Order dated November 15, 2011 (the "November 15 Opinion"), the Court denied Plaintiffs' motion to strike classified declarations, granted in part Plaintiffs' motion for in camera review, and kept open the parties' cross-motions for summary judgment pending additional submissions from Defendants. ACLU v. Office of the Dir. ofNat 'I Intelligence, No. 10 Civ. 4419 (RJS), 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011).
On January 25, 2012, the Court received the following classified submissions from Defendants for in camera, ex parte review: (I) a Supplemental Declaration from Diane M. Janosek, Deputy Associate Director for Policy and Records for the National Security Agency ("NSA"), dated January 13, 2012 ("Supplemental Janosek Declaration"); (2) a Supplemental Declaration from Mark A. Bradley, Director of the FOIA Declassification Unit of the Office of Law and Policy in the National Security Division ("NSD") of the United States Department of

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 2 of 10

Justice, dated January 25, 2012 ("Supplemental Bradley Declaration"); (3) Exhibit A to the

Second Declaration from David M. Hardy, Section Chief of the Record/Information

Dissemination Section, Records Management Division, Federal Bureau of Investigation ("FBI"),

dated January 25, 20 12; and (4) a Supplemental Declaration from an undisclosed declarant

("Supplemental Classified Declaration"), dated January 20, 2012. Additionally, the Court is in

receipt of the following unclassified, publicly filed submissions: (1) a Supplemental Declaration

from John F. Hackett, Director of Information Management for the Office of the Director of

National Intelligence ("ODNI"), dated January 24, 2012 ("Supplemental Hackett Declaration")

(Doc. No. 48); and (2) a Second Declaration from David M. Hardy, dated January 25, 2012

("Second Hardy Declaration") (Doc. No. 51), which is unclassified with the removal of Exhibit

A.

Having conducted a careful review of Defendants' additional submissions, the Court

concludes that Defendants have demonstrated that the withheld materials responsive to

Plaintiffs' requests fall within the claimed FOIA exemptions. Accordingly, for the reasons that

follow, Defendants' motion for summary judgment is granted and Plaintiffs' motion for

summary judgment is denied.

I. BACKGROUND 1

This action arises from Plaintiffs' FOIA requests for records relating to the government's

interpretation and implementation ofthe FAA. Specifically, at issue in this case are Defendants'

claimed withholdings and redactions of materials pursuant to FOIA Exemptions 1, 3, and 7(E).Z

1 The Court assumes the parties' familiarity with the facts of this case, as well as the applicable legal standard, as outlined the November 15 Opinion. See ACLU, 2011 WL 5563520. Accordingly, the Court provides only a brief summary of each in this opinion.
2 Defendants also withheld or redacted materials pursuant to Exemptions 2, 4, 6, 7(C), and 7(D). Plaintiffs do not contest these withholdings. (Pis.' Mem. 9 n.l6.)
2

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 3 of 10
A. The November 15, 2011 Opinion In the November 15 Opinion, after conducting a de novo review of agency affidavits with respect to FOIA Exemptions 1, 3, and 7(E), the Court determined that much of the justification put forth for redacting or withholding materials was conclusory, with Defendants making little effort to apply the relevant exemptions to the withheld documents.3 ACLU, 2011 WL 5563520, at *4-11. Importantly, with respect to Plaintiffs' request for, and Defendants' withholding of, statistical and other information regarding overcollection under the FAA, the Court concluded that Defendants "fail[ed] to demonstrate that the withheld statistical information 'logically falls within the claimed exemption[s]."' !d. at *8 (quoting Wilner v. Nat'/ Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009)). Because Plaintiffs' FOIA requests are concerned primarily with alleged abuse of the FAA, the Court reiterates that government agencies are not permitted to classify information in order to "conceal violations of law, inefficiency, or administrative error" or to "prevent embarrassment." Exec. Order No. 13,~26 § 1.7(a)(l)-(2). Despite its finding that Defendants' submissions were inadequate, however, the Court denied Plaintiffs' request for full in camera review of the agency records withheld by Defendants. Instead, the Court directed Defendants to submit for in camera review Vaughn indices and, if necessary, additional Vaughn affidavits providing further justification for Defendants' withholdings.4 The Court noted that the goal of the supplemental submissions was
3 The Court found, however, that the FBI had met its burden with respect to the withholding of FBI case file numbers. ACLU, 2011 WL 5563520, at *10-11. 4 In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), the D.C. Circuit held that an agency could meet its burden in FOIA litigation by submitting documentation that provides '"a relatively detailed analysis [ofthe withheld material] in manageable segments' without resort to 'conclusory and generalized allegations of exemptions,"' and '"an indexing system [that] would subdivide the [withheld] document under consideration into manageable parts crossreferenced to the relevant portion of the Government's justification." Halpern v. FBI, 181 F.3d 279, 290 (2d Cir. 1999) (quoting Vaughn, 484 F.2d at 826-27) (alterations in original). However, the Second Circuit has "eschewed rigid adherence to any particular indexing format under the Vaughn standard, opting instead for a functional approach." !d. at 291.
3

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 4 of 10
to "'forc[e] the government to analyze carefully any material withheld' and 'enabl[e] the [Court] to fulfill its duty of ruling on the applicability"' of the claimed exemptions. ACLU, 2011 WL 5563520, at *13 (quoting Keys v. U.S. Dep't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)). Accordingly, the Court clarified that any additional Vaughn affidavits should "include 'a relatively detailed analysis [ofthe withheld material] in manageable segments' without resort to 'conclusory and generalized allegations of exemptions."' ld. (quoting Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)) (alteration in original).
B. Defendants' Subsequent Submissions The Second Hardy Declaration, which is unclassified but accompanied by a classified Exhibit A, describes the bases for the FBI's withholdings pursuant to FOIA Exemptions 1 and 7(E), which are set forth with more detail in Exhibit A. Hardy avers that certain materials were withheld pursuant to Exemption 1 because they reveal "intelligence sources and methods," which pursuant to Executive Order No. 13,526, Section 1.4(c) cannot be disclosed. (Second Hardy Dec!. ,-r 8.) Specifically, Hardy asserts that disclosure could damage national security by revealing: (1) intelligence activities; (2) "criteria used for - and priorities assigned to - current intelligence or counterintelligence investigations"; (3) certifications authorized by the Foreign Intelligence Surveillance Court; and (4) "targ~ting specifications, national security operation coordination, electronic surveillance acquisition and dissemination pathways, and intelligence retention and security procedures." (Id) According to Hardy, revealing this material could enable adversaries to acquire intelligence data or develop countermeasures to intelligence collection efforts. (Id) With respect to Exemption 7(E), Hardy asserts that Plaintiffs seek information detailing "procedures and guidelines concerning the targeting and collection, inter-
4

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 5 of 10
agency coordination, retention, search and analysis, dissemination, and purging of intelligence collected pursuant to FAA 702." (ld. ~ I 0.)
Because the remaining materials are classified, the Court cannot describe their content in other than the most general of terms. However, in the interest of providing as much information as possible regarding the basis of the Court's decision, the Court will outline the nature of the submissions. The Supplemental Janosek Declaration is 30 pages in length and contains descriptions of the NSA's justifications for its withholdings, and attaches a 12-page Vaughn index. The Supplemental Bradley Declaration is 42 pages, providing for each category of withheld materials a written description ofthe grounds for its withholdings and a Vaughn index. Exhibit A to the Second Hardy Declaration is a 63-page Vaughn index that provides a detailed description of, and individual justifications for,' each of the FBI's withholdings and redactions. The Supplemental Classified Declaration from the undisclosed declarant is 19 pages and contains a written description of the grounds for withholdings. 5
II. DISCUSSION Summary judgment is appropriate in a FOIA case where affidavits submitted by the defending agency "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." Wilner, 592 F.3d at 73. "Recognizing the relative competencies of the executive and judiciary, ... it is bad law and bad policy to 'second-guess the predictive judgments made by the
5 The Supplemental Hackett Declaration, which is un~lassified, explains that, of the six documents that the ODNI processed, three were semi-annual assessments and three were ODNI cover letters. Specifically, the semi-annual assessments were prepared in cooperation with the Department of Justice. However, the ODNI is "not the classification authority over the information in the semi[-]annual report" and thus defers to other agencies for "[d]etailed justifications for these withholdings" in their classified submissions. (Supp. Hackett Dec!.~~ 9-1 0.) As set forth below, the Court finds that Defendants adequately justified these withholdings in other submissions. In addition, redactions to the ODNI cover letters were made pursuant to FOIA exemptions 2 and 6, which Plaintiffs do not challenge. (/d. ~ II; Pis.' Mem. 9 n.l6.)
5

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 6 of 10
government's intelligence agencies' regarding questions such as whether disclosure of terroristrelated surveillance records would pose a threat to national security." ld. at 76 (quoting Larson v. Dep't ofState, 565 F.3d 857, 865 (D.C. Cir. 2009)). However, although courts are constrained to accord "substantial deference to agency affidavits that implicate national security," Associated Press v. Dep't of Def, 498 F. Supp. 2d 707, 710 (S.D.N.Y. 2007) (internal quotation marks and citations omitted), the Court must nonetheless1conduct thorough de novo review of the affidavits and indices submitted by Defendants and resolve all doubts in favor of disclosure. Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999).
A. Exemption I Pursuant to FOIA Exemption l, an agency may withhold records that are: "(A) specifically authorized under criteria established by an Executive [O]rder to be kept secret in the interest of national defense ... and (B) are in fact properly classified pursuant to such Executive [O]rder." 5 U.S.C. § 552(b)(l). As set forth in their publicly filed, unclassified affidavits, Defendants invoked sections 1.4(b), (c), and (g) of Executive Order 13,526. The applicable sections permit classification of "foreign government information," Exec. Order No. 13,526 § 1.4(b); "intelligence activities (including covert action), intelligence sources or methods, or cryptology," id § 1.4(c); and "vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security," id § 1.4(g). The Court finds that, in contrast to their initial submissions, Defendants' classified Vaughn affidavits and indices "adequately describe the [c]lassified [d]ocuments withheld by the [government] for the Court to determine that those documents fall within one or more of [the categories identified by the agency], and are properly withheld." N.Y. Times Co. v. Dep 't ofDef,
6

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 7 of 10
499 F. Supp. 2d 501, 512 (S.D.N.Y. 2007).6 The submissions further describe "the impact upon intelligence sources and methods" that disclosure of documents withheld pursuant to Exemption 1 "could reasonably be expected to have." Rubin v. CIA, No. 01 Civ. 2274 (DLC), 2001 WL 1537706, at *4 (S.D.N.Y. Dec. 3, 2001). Although the submissions occasionally resort to conclusory assertions and boilerplate, such as when the FBI repeatedly asserts that disclosure of certain documents would enable enemies to "seek out and intimidate personnel" with no explanation as to how this could be the case (Second Hardy DecI., Ex. A, at 37), the submissions ultimately provide adequate justification for each of Defendants' withholdings and redactions pursuant to Exemption I.
As noted above, the Court's November 15 Opinion found that Defendants' previous submissions were insufficient with respect to Plaintiffs' requests for information concerning overcollection under the FAA. To be sure, some of the reasons put forth in Defendants' latest classified submissions remain unconvincing. For example,
presumably, the public is already aware that the government is highly accurate and effective in its collection under Section 702. Nevertheless, the Court finds persuasive Defendants' explanation that any responsive information that it has withheld, particularly in combination with information that the government has already made public, would reveal potentially damaging information regarding the scope of the government's
6 The Court notes that of all of Defendants' recent submissions, Exhibit A to the Second Hardy Declaration is, with a few exceptions, exemplary in terms of providing descriptions of the materials withheld and the specific grounds for doing so, thus allowing the Court to conduct effective de novo review of the grounds for the FBI's withholdings.
7
; I

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 8 of 10
intelligence activities. Likewise, any information regarding particular instances of noncompliance is inextricably commingled with details of intelligence activities and methods and, thus, properly withheld pursuant to Exemption I. Perhaps most importantly, the Court is persuaded that the redactions and withholdings of statistical information are not motivated by a desire to avoid embarrassment or to conceal violations of law, which, as noted above, are impermissible bases for withholding records under FOIA.
Because Defendants have supplied Vaughn affidavits and indices containing "reasonable specificity of detail as to demonstrate that the withheld information logically falls within" Exemption 1, it would be inappropriate for the Court to proceed to "evaluate whether [it] agrees with the agency's opinions." Wilner, 592 F.3d at 76 (quoting Larson, 565 F.3d at 865). Accordingly, the Court finds that Defendants have met their burden of establishing that responsive documents fall within Exemption 1.
B. Exemption 3 Exemption 3 permits withholding where: "( 1) the statute invoked qualifies as an [E]xemption 3 withholding statute, and (2} the materials withheld fall within that statute's scope." A. Michael's Piano Inc. v. Fed. Trade Comm 'n, 18 F.3d 138, 143 (2d Cir. 1994). Specifically, as set forth in their publicly filed materials, both the ODNI and the NSA invoke the National Security Act of 1947, which states that "[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403l(i)(l). The NSA also invokes the National Security Agency Act of 1959, which provides that "nothing in this Act or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency, [or] of any information with respect to the activities thereof," Pub. L. No. 86-36, § 6(a}, 73 Stat. 63, 64 (codified at 50 U.S.C.
8

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 9 of 10
§ 402 note), and 18 U.S.C. § 798, which prohibits unauthorized disclosure of classified communications "concerning the communication intelligence activities of the United States or any foreign government."
Defendants' initial submissions provided only conclusory justifications under Exemption 3, failing to connect the relevant statutory exemptions with the nature of Plaintiffs' request, which sought not specific communications and interceptions but largely statistical information relating to overcollection and abuse. ACLU, 2011 WL 5563520, at *9-1 0. In contrast, Defendants' classified submissions provide detailed descriptions of responsive materials that have been withheld, including documents responsive to Plaintiffs' statistical requests, and Defendants adequately explain why the withheld materials reveal "intelligence sources or methods," the activities of the NSA, and "communications intelligence activities" of the United States government. Accordingly, the Court finds that Defendants have met their burden of establishing that responsive documents are properly withheld pursuant to Exemption 3.
C. Exemption 7(E) Finally, Exemption 7(E) allows the government to withhold materials that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention ofthe law." 5 U.S.C. § 552(b)(7)(E). In its prior decision, the Court determined that, with respect to Exemption 7(E), the first Hardy Declaration offered little more than a vague description of the withheld documents and "a generic assertion that disclosure 'could enable targets . . . to avoid detection or develop countermeasures to circumvent' law enforcement efforts." ACLV, 2011 WL 5563520, at *11 (citing Dec!. of Robert D. Balin, dated June 3, 2011, Doc. No. 34, Ex. 13 ~ 69). In contrast, the
9

Case 1:10-cv-04419-RJS Document 52 Filed 03/30/12 Page 10 of 10

classified Exhibit A to the Second Hardy Declaration provides extensive detail regarding the

nature of the "internal e-mails, training slides, legal opinions and interpretations of techniques,

Standard Operating Procedures, electronic communications concerning investigations, case

write-ups, and miscellaneous reports" identified in the FBI's previous submission. /d Again,

although not all of the rationales put forth are convincing, the Court finds that Defendants have

met their burden of establishing that responsive materials, if released, could threaten law

enforcement efforts and are therefore properly withheld pursuant to Exemption 7(E).

III. CONCLUSION

For the foregoing reasons, Plaintiffs' motion for summary judgment is HEREBY

DENIED, and Defendants' motion for summary judgment is HEREBY GRANTED. The Clerk

of the Court is respectfully directed to terminate the motions located at Doc. Nos. 31 and 35 and

close this case.

SO ORDERED.

DATED:

March 30, 2012 New York, New York

10

 
 Case: 1:10-cv-4419 As of: 05/04/2015 04:01 PM EDT 1 of 8
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10−cv−04419−RJS

CLOSED,ECF

American Civil Liberties Union et al v. Office of the Director of National Intelligence et al Assigned to: Judge Richard J. Sullivan Cause: 05:552(a) Complaint in the Nature of Mandamus
Plaintiff

Date Filed: 06/03/2010 Date Terminated: 03/30/2012 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union

represented by Melissa Goodman American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212)549−2622 Fax: (212)549−2629 Email: mgoodman@nyclu.org TERMINATED: 12/23/2010 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: aabdo@aclu.org ATTORNEY TO BE NOTICED

Bruce Edward Johnson Davis Wright Tremaine, LLP (WA) 1201 Third Avenue Suite 2200 Seattle, WA 98101 (206) 757−8069 Email: brucejohnson@dwt.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Arterburn Davis Wright Tremaine, LLP (WA) 1201 Third Avenue Suite 2200 Seattle, WA 98101 (206) 757−8069 PRO HAC VICE ATTORNEY TO BE NOTICED

Robert D. Balin Davis Wright Tremaine LLP (NYC) 1633 Broadway New York, NY 10019 212 489−8230 Fax: 212 489−8340 Email: robbalin@dwt.com ATTORNEY TO BE NOTICED

Case: 1:10-cv-4419 As of: 05/04/2015 04:01 PM EDT 2 of 8

Ronald Gary London Davis, Wright, Tremaine, LLP(DC) 1919 Pennsylvania Avenue, N.W, Washington, DC 20006−3402 (202)−508−6635 Fax: (202)−508−6699 Email: ronnielondon@dwt.com ATTORNEY TO BE NOTICED

Samuel Bayard Davis Wright Tremaine LLP (NYC) 1633 Broadway New York, NY 10019 (212) 489−8230 Fax: (212) 489−8340 Email: samuelbayard@dwt.com ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Foundation

represented by Melissa Goodman (See above for address) TERMINATED: 12/23/2010 LEAD ATTORNEY

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

Bruce Edward Johnson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Arterburn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert D. Balin (See above for address) ATTORNEY TO BE NOTICED

Ronald Gary London (See above for address) ATTORNEY TO BE NOTICED

Samuel Bayard (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Office of the Director of National Intelligence

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

Case: 1:10-cv-4419 As of: 05/04/2015 04:01 PM EDT 3 of 8

Defendant Department of Justice
Defendant National Security Agency/Central Security Service
Defendant Department of Defense

Carolina A. Fornos U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212− 637−2740 Fax: 212−637−2702 Email: carolina.fornos@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis Anthony Pellegrino U.S. Attorney Office SDNY 86 Chambers Street New York, NY 10007 (212) 637−2689 Fax: (212) 637−2686 Email: louis.pellegrino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Henry Torrance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolina A. Fornos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis Anthony Pellegrino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Henry Torrance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolina A. Fornos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis Anthony Pellegrino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Henry Torrance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolina A. Fornos (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED
Louis Anthony Pellegrino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/03/2010
06/03/2010 06/03/2010 06/03/2010 06/03/2010 06/07/2010 07/02/2010
07/14/2010 07/14/2010 07/14/2010 07/14/2010 08/05/2010

# Docket Text
1 COMPLAINT against Office of the Director of National Intelligence, Department of Justice, National Security Agency/Central Security Service, Department of Defense. (Filing Fee $ 350.00, Receipt Number 905701)Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(rdz) (Entered: 06/04/2010)
SUMMONS ISSUED as to Office of the Director of National Intelligence, Department of Justice, National Security Agency/Central Security Service, Department of Defense. (rdz) (Entered: 06/04/2010)
Magistrate Judge Kevin Nathaniel Fox is so designated. (rdz) (Entered: 06/04/2010)
Case Designated ECF. (rdz) (Entered: 06/04/2010)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(rdz) (Entered: 06/04/2010)
3 NOTICE OF APPEARANCE by Melissa Goodman on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Goodman, Melissa) (Entered: 06/07/2010)
4 ORDER: IT IS HEREBY ORDERED THAT Defendants shall answer or otherwise respond to the complaint by August 5, 2010. IT IS FURTHER ORDERED THAT the parties shall appear for a status conference on August 19, 2010 at 11:00 a.m. in Courtroom 21C of the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York. IT IS FURTHER ORDERED THAT, by August 11, 2010 at 4:00 p.m., the parties shall jointly submit a letter, not to exceed five (5) pages, providing the following information set forth within this Order in separate paragraphs. IT IS FURTHER ORDERED THAT, by August 11, 2010 at 4:00 p.m., the parties shall submit to the Court a proposed case management plan and scheduling order. (Signed by Judge Richard J. Sullivan on 7/2/2010) (jfe) (Entered: 07/06/2010)
5 AFFIDAVIT OF SERVICE of Summons served on Department of Defense on June 11, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
6 AFFIDAVIT OF SERVICE of Summons served on Department of Justice on June 15, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
7 AFFIDAVIT OF SERVICE of Summons served on National Security Agency/Central Security Service on June 9, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
8 AFFIDAVIT OF SERVICE of Summons served on Office of the Director of National Intelligence on June 14, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
9 ANSWER to Complaint. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence.(Fornos, Carolina) (Entered: 08/05/2010)

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08/11/2010 08/11/2010 08/13/2010 08/20/2010 11/10/2010 11/29/2010 12/20/2010
12/22/2010 12/23/2010
01/21/2011

10 NOTICE OF APPEARANCE by Benjamin H. Torrance on behalf of Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence (Torrance, Benjamin) (Entered: 08/11/2010)
11 NOTICE OF APPEARANCE by Carolina A. Fornos on behalf of Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence (Fornos, Carolina) (Entered: 08/11/2010)
12 STIPULATION AND ORDER Regarding FOIA Request as set forth in this order. (Signed by Judge Richard J. Sullivan on 8/13/2010) (jmi) (Entered: 08/13/2010)
13 ORDER THAT, by December 17,2010, the parties shall submit a joint letter apprising the Court of the status of the parties' negotiations and their views concerning potential motions. SO ORDERED. (Status Report due by 12/17/2010.) (Signed by Judge Richard J. Sullivan on 8/19/2010) (jmi) Modified on 8/20/2010 (jmi). (Entered: 08/20/2010)
14 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Benjamin H. Torrance dated 11/9/10 re: With the consent of plaintiffs' counsel, the government respectfully requests an extension of time to December 17, 2010 to provide the Court with a joint letter regarding the status of the case. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 11/10/10) (djc) (Entered: 11/10/2010)
15 NOTICE OF APPEARANCE by Alexander Abraham Abdo on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Abdo, Alexander) (Entered: 11/29/2010)
16 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Alexander A. Abdo and Jameel Jaffer, dated 12/17/2010, re: On November 29, 2010, Defendants completed their processing and production of responsive documents. Since that time, Plaintiffs have reviewed the production and conferred with Defendants regarding future proceedings. Plaintiffs will likely raise several challenges to Defendants' withholding of records; however, the parties continue to discuss the scope of those challenges, if any, in the hope of narrowing them. To allow those discussions to continue, the parties respectfully request until January 21, 2011 to submit a joint status report apprising the Court of the status of the parties' negotiations and the need for further litigation if any. Should further litigation be necessary, it will consist of cross−motions for summary judgment as to the propriety of Defendants' withholding of responsive records pursuant to the various exemptions of FOIA. See 5 U.S.C. § 552(b). ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 12/17/2010) (lnl) (Entered: 12/20/2010)
17 MOTION for Melissa Goodman to Withdraw as Attorney. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Goodman, Melissa) (Entered: 12/22/2010)
18 ORDER: Before the Court is Plaintiffs' counsel Melissa Goodman's motion to withdraw as counsel, as she is no longer working for the American Civil Liberties Union Foundation, which represents Plaintiffs in this case. Plaintiffs continue to be represented by the Foundation and another attorney from the Foundation has filed a notice of appearance. Accordingly, IT IS HEREBY ORDERED THAT the motion is granted. The Clerk of Court is respectfully directed to remove Ms. Goodman's appearance from the docket sheet and terminate the motion listed as Docket Number 17 . Attorney Melissa Goodman terminated. (Signed by Judge Richard J. Sullivan on 12/23/2010) (lnl) (Entered: 12/23/2010)
19 ENDORSED LETTER: addressed to Judge Richard J. Sullivan from Benjamin H. Torrance dated 1/21/2011 re: Counsel for defendant request that the Court permit the parties to file an additional status report by February 11, 2011, in which the parties will either indicate their agreement to dismiss this action or propose a schedule for submission of cross−motions for summary judgment. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 1/21/11) (js) (Entered: 01/24/2011)

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01/25/2011 02/14/2011 02/23/2011
04/19/2011 04/19/2011 04/27/2011 04/27/2011 05/02/2011 05/03/2011 05/03/2011 05/11/2011 05/16/2011
06/03/2011

20 NOTICE OF APPEARANCE by Louis Anthony Pellegrino on behalf of Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence (Pellegrino, Louis) (Entered: 01/25/2011)
21 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Alexander A. Abdo dated 2/11/2011 re: The parties respectfully request until 2/23/2011 to submit to the Court a proposed schedule to address Defendants' withholdings. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 2/14/2011) (ae) (Entered: 02/14/2011)
22 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Louis A. Pellegrino dated 2/23/2011 re: The parties hereby propose the following schedule: Government's draft Vaughn indexes and/or declarations to be submitted to Plaintiff by 4/25/2011; ACLU will move for summary judgment on outstanding issues due May 20, 2011; Government's opposition to ACLU's motion and cross−motion for summary judgment due June 17, 2011; ACLU's reply brief due July 1, 2011. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 2/23/2011) (jpo) (Entered: 02/23/2011)
23 NOTICE OF APPEARANCE by Robert D. Balin on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Balin, Robert) (Entered: 04/19/2011)
24 NOTICE OF APPEARANCE by Samuel Bayard on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Bayard, Samuel) (Entered: 04/19/2011)
25 MOTION for Bruce Johnson to Appear Pro Hac Vice. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(mbe) (Entered: 05/02/2011)
26 MOTION for Jennifer Arterburn to Appear Pro Hac Vice. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(mbe) (Entered: 05/02/2011)
CASHIERS OFFICE REMARK on 25 Motion to Appear Pro Hac Vice, 26 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 04/27/2011, Receipt Number 5192. (jd) (Entered: 05/02/2011)
27 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION, granting 25 Motion for Bruce Johnson to Appear Pro Hac Vice as counsel for Plaintiffs. (Signed by Judge Richard J. Sullivan on 5/3/2011) (lnl) (Entered: 05/03/2011)
28 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION, granting 26 Motion for Jennifer Arterburn to Appear Pro Hac Vice as counsel for Plaintiffs. (Signed by Judge Richard J. Sullivan on 5/3/2011) (lnl) (Entered: 05/03/2011)
29 NOTICE OF APPEARANCE by Ronald Gary London on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (London, Ronald) (Entered: 05/11/2011)
30 STIPULATION AND ORDER ADJOURNING BRIEFING SCHEDULE: The date for Plaintiffs to file and serve their motion for summary judgment on outstanding issues, currently scheduled for May 20, 2011, shall be adjourned and extended to June 3, 2011. the date for Defendants to file and serve their papers in opposition to the Summary Judgment Motion and in support of any cross−motion for summary judgment, currently scheduled for June 17, 2011, shall be adjourned and extended to July 1, 2011. The date for Plaintiffs to file and serve their reply papers in further support of the Summary Judgment Motion and in opposition to any cross−motion for summary judgment currently scheduled for July 1, 2011, shall be adjourned to July 18, 2011. So Ordered (Signed by Judge Richard J. Sullivan on 5/16/2011) (js) (Entered: 05/17/2011)
31 MOTION for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Balin, Robert) (Entered: 06/03/2011)

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06/03/2011 06/03/2011 06/03/2011
07/01/2011 07/01/2011
07/01/2011 07/05/2011 07/18/2011 07/18/2011 07/18/2011 08/01/2011 08/08/2011 08/08/2011

32 MEMORANDUM OF LAW in Support re: 31 MOTION for Summary Judgment.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Balin, Robert) (Entered: 06/03/2011)
33 RULE 56.1 STATEMENT. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Balin, Robert) (Entered: 06/03/2011)
34 DECLARATION of Robert D. Balin in Support re: 31 MOTION for Summary Judgment.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit)(Balin, Robert) (Entered: 06/03/2011)
35 CROSS MOTION for Summary Judgment. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. Responses due by 7/18/2011(Torrance, Benjamin) (Entered: 07/01/2011)
36 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 35 CROSS MOTION for Summary Judgment. and in opposition to 31 plaintiffs' motion for summary judgment. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) Modified on 7/5/2011 (ldi). (Entered: 07/01/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Benjamin H. Torrance to RE−FILE Document 36 Memorandum of Law in Support of Motion. ERROR(S): No signature or s/. (ldi) (Entered: 07/05/2011)
37 MEMORANDUM OF LAW in Support re: 35 CROSS MOTION for Summary Judgment. and in opposition to 31 plaintiffs' motion for summary judgment. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 07/05/2011)
38 MOTION to Strike or, In the Alternative, For Complete In Camera Review. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(London, Ronald) (Entered: 07/18/2011)
39 MEMORANDUM OF LAW in Support re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (London, Ronald) (Entered: 07/18/2011)
40 REPLY to Response to Motion re: 31 MOTION for Summary Judgment. and in opposition to 35, defendants' cross motion for summary judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (London, Ronald) (Entered: 07/18/2011)
41 ORDER, Set Deadline as to 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review. Response due by 8/8/2011, Reply due by 8/17/2011. (Signed by Judge Richard J. Sullivan on 8/1/11) (cd) (Entered: 08/01/2011)
42 MEMORANDUM OF LAW in Opposition re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 08/08/2011)
43 DECLARATION of Diane M. Janosek in Opposition re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review., 31 MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 08/08/2011)

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08/17/2011 11/15/2011
11/28/2011 01/17/2012 01/25/2012 01/25/2012 01/25/2012 01/25/2012 03/30/2012
03/30/2012 03/30/2012

44 REPLY to Response to Motion re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (London, Ronald) (Entered: 08/17/2011)
45 OPINION AND ORDER:#101028 For the reasons stated above, Plaintiffs' motion to strike is HEREBY DENIED; their motion in the alternative for in camera review is Granted in Part and Denied in Part. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 38. The cross motions for summary judgment, located at Doc. Nos. 31 and 35, will remain open pending the additional submissions set forth above. (Signed by Judge Richard J. Sullivan on 11/15/2011) (js) Modified on 11/21/2011 (jab). (Entered: 11/15/2011)
46 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Benjamin H. Torrance and Louis A. Pellegrino dated 11/23/2011 re: Counsel for the defendants requests until 1/18/2012, to provide their in camera responses. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 11/28/2011) (ft) (Entered: 11/28/2011)
47 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Benjamin H. Torrance and Louis A. Pellegrino dated 1/16/2012 re: Counsel for the Defendant writes to request that the in camera review due on 1/18/2012 be extended until 1/25/2012. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 1/17/2012) (ab) (Entered: 01/17/2012)
48 DECLARATION of John F. Hackett in Support re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
49 NOTICE of Classified Filing re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
50 DECLARATION of David M. Hardy in Support re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
51 DECLARATION of David M. Hardy (corrected declaration) in Support re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
52 MEMORANDUM AND ORDER denying 31 Motion for Summary Judgment filed by American Civil Liberties Union, American Civil Liberties Union Foundation; granting 35 Motion for Summary Judgment filed by Defendants: Plaintiffs' motion for summary judgment is HEREBY DENIED, and Defendants' motion for summary judgment is HEREBY GRANTED. The Clerk of the Court is respectfully directed to terminate the motions located at Doc. Nos. 31 and 35 and close this case. (Signed by Judge Richard J. Sullivan on 3/30/2012) (ab) (Entered: 03/30/2012)
Transmission to Judgments and Orders Clerk. Transmitted re: 52 Order on Motion for Summary Judgment to the Judgments and Orders Clerk. (ab) (Entered: 03/30/2012)
53 CLERK'S JUDGMENT That for the reasons stated in the Court's Memorandum and Order dated March 30, 2012, Plaintiffs' motion for summary judgment is denied, and Defendants' motion for summary judgment is granted; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 3/30/12) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 03/30/2012)