Am. Civil Liberties Union v. U.S. Dep't of Justice

• Decision Date: 27 September 2016
• Docket Number: 1:13-cv-7347-GHW
• Citation: 210 F.Supp.3d 467
• Parties: AMERICAN CIVIL LIBERTIES UNION, et uno, Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Southern District of New York

210 F.Supp.3d 467

AMERICAN CIVIL LIBERTIES UNION, et uno, Plaintiffs,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

1:13-cv-7347-GHW

United States District Court, S.D. New York.

Signed September 27, 2016

Alexander Abraham Abdo, Brett Max Kaufman, Jameel Jaffer, Patrick Christopher Toomey, American Civil Liberties Union, Women's Rights Proj., New York, NY, for American Civil Liberties Union and American Civil Liberties Union Foundation.

Benjamin Henry Torrance, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

I. INTRODUCTION

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

II. BACKGROUND

The ACLU's FOIA request seeks:

(1) The case name, docket number, and court of all legal proceedings, including criminal prosecutions, current or past, in which the Department of Justice intends or intended to enter into evidence, or otherwise used or disclosed in any trial, hearing, or other proceeding, any information obtained or derived from electronic surveillance pursuant to the authority of the FAA;

(2) Policies, procedures, and practices governing the provision of notice to "aggrieved persons," as set forth in 50 U.S.C. § 1881e(a) and § 1806(c), of the government's intent to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding information obtained or derived from electronic surveillance pursuant to the authority of the FAA; and

(3) Legal memoranda or opinions addressing or interpreting the FAA's notice provision or requirements, as set forth in 50 U.S.C. § 1881e(a) and § 1806(c).

Id.

The ACLU filed this lawsuit on October 17, 2013, seeking an injunction requiring DOJ to process its request, after DOJ failed to respond timely. After the ACLU filed suit, NSD identified five responsive documents, all of which of which it withheld under FOIA's Exemption 5. Exemption 5 exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The ACLU challenged both the adequacy of DOJ's search and the applicability of Exemption 5 to the withheld documents, and the parties filed cross-motions for summary judgment on these two issues. See Dkt. Nos. 17, 23, 26, 29.

On March 3, 2015, the Court granted the ACLU's motion in part, finding that DOJ had improperly limited its search under part 3 of the ACLU's request by reading the word "governing" into the request where it had not been written, and ordered DOJ to conduct a new search without the improperly-added limiting term and to release any responsive records not entitled to be withheld under a FOIA exemption. See Memorandum Opinion and Order, dated March 3, 2015, Dkt. No. 35, at 2 ("March 3 Order"). The Court denied the ACLU's motion in part to the extent that it sought summary judgment on the adequacy of the remaining aspects of the scope and conduct of DOJ's search. On the issue of whether Exemption 5 applied to the withheld documents, the Court, after reviewing the documents in camera , granted DOJ's motion for summary judgment. Id.

In compliance with the March 3 Order, NSD broadened its search for documents responsive to part 3 of the ACLU's request by "conduct[ing] another search for materials that were non-governing." Declaration of Mark A. Bradley, Dkt. No. 49, ¶ 4 ("Bradley Decl."). Before the previous round of motions for summary judgment, the parties had also agreed that EOUSA's search would be limited to the U.S. Attorneys' Offices ("USAOs") for the Districts of Oregon and Colorado. March 3 Order at 6. Following the March 3 Order, EOUSA searched for all records requested in parts 2 and 3 of the ACLU's request in the Southern District of California, the Southern District of Florida, the Northern District of Illinois, and the Eastern District of New York. Declaration of John Kornmeier, Dkt. No. 50, ¶ 8 ("Kornmeier Decl."); see also Declaration of Patrick Toomey, Dkt. No. 54, ¶ 5 (following the March 3 Order, "DOJ then conducted an expanded search, both within NSD and within EOUSA, including in the districts where the parties had previously agreed to defer searches."). For the remaining 88 USAOs, EOUSA limited its search to "any version of the ‘FISA-derived guidance’ and documents addressing that guidance." Id. ¶ 9. This round of cross-motions for summary judgment concerns the responses of NSD to part 3 of the ACLU's request and of EOUSA to parts 2 and 3.

On August 27, 2015, DOJ informed the Court by letter that "the government has provided plaintiffs with indexes of documents responsive to the FOIA request at issue in this action and withheld under FOIA's exemptions. No non-exempt documents were produced." Dkt. No. 43. NSD has submitted an index of withheld documents containing 37 entries. See NSD Index, Dkt. No. 49–1. EOUSA has submitted an index of withheld documents containing 45 entries. See EOUSA Index, Dkt. No. 50. After the ACLU identified the withheld documents it intended to challenge, on November 23, 2015, DOJ filed a motion for summary judgment as to the adequacy of DOJ's searches and the applicability of FOIA exemptions to the withheld documents. Dkt. No. 47. On December 22, 2015, the ACLU filed a cross-motion for summary judgment and opposition to DOJ's motion. Dkt. No. 53. The ACLU is not challenging the withholding of NSD Doc. Nos. 8, 16, 17, 18, 20, and 25, nor the withholding of EOUSA Doc. Nos 11, 16, and 39. ACLU Memo, Dkt. No. 53, at 5.

The ACLU asks the Court to order DOJ to release the documents that have served as DOJ's "working law" or, in the alternative, to permit the ACLU to conduct limited discovery to establish the extent to which the documents constitute working law which would need to be disclosed notwithstanding Exemption 5. ACLU Memo at 2. The ACLU requests that, if the Court declines to grant discovery, it direct DOJ "at a minimum, to supplement its inadequate declarations and Vaughn indices" with information that would enable to the ACLU to determine if any of the withheld documents constitute working law. Id. at 24. The ACLU also asks the Court to "[f]ind DOJ's search inadequate because it failed to identify the document that have provided operative guidance to personnel implementing DOJ's decision to give notice." Id. at 25.

The primary point of contention between the parties, as presented in their cross-motions for summary judgment, concerns the applicability of FOIA Exemption 5 and the working law exception thereto. As explained below, the Court holds—as it must under controlling Supreme Court precedent—that the working law doctrine cannot abrogate work product protection. The Court further holds that DOJ has sufficiently demonstrated that the documents withheld by NSD constitute work product, with the exception of NSD Doc. No. 7, and that DOJ should be granted an opportunity to provide additional support for its claims of work product for documents withheld by EOUSA and for NSD Doc. No 7.

III. LEGAL FRAMEWORK

In the March 3 Order, the Court discussed in detail the statutes relevant to this dispute, including the relevant provisions of FOIA, the Foreign Intelligence Surveillance Act and the FISA Amendments Act ("FAA"). The Court assumes familiarity with the March 3 Order.

a. Summary Judgment Standard

A moving party is entitled to summary judgment if it can "show[ ] that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " (quoting former Fed. R. Civ. P. 56(c) )). A genuine dispute exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," while a fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

To defeat a motion for summary judgment, the non-moving party "must come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting former Fed. R. Civ. P. 56(e) ). "[M]ere speculation or conjecture as to the true nature of the facts" will not suffice. Hicks v. Baines , 593 F.3d 159, 166 (2d Cir.2010) (citations and internal quotations omitted). A party "must do...