N.Y. Times Co. v. U.S. Dep't of Justice
| Decision Date | 17 May 2012 |
| Docket Number | Nos. 11 Civ. 6990(WHP), 11 Civ. 7562(WHP).,s. 11 Civ. 6990(WHP), 11 Civ. 7562(WHP). |
| Citation | 872 F.Supp.2d 309 |
| Parties | THE NEW YORK TIMES CO., et ano., Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. American Civil Liberties Union, et ano., Plaintiffs, v. Federal Bureau of Investigation, et ano., Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
David E. McCraw, Esq., The New York Times Company, New York, NY, for the New York Times Company and Charlie Savage.
Alexander A. Abdo, Esq., Jameel Jaffer, Esq., American Civil Liberties Union, New York, NY, Beth Haroules, Esq., Arthur Eisenberg, Esq., New York Civil Liberties Union Foundation, New York, NY, Charles S. Simms, Esq., Richard I. Haddad, Esq., Stuart A. Youngs, Esq., Proskauer Rose LLP, New York, NY, for the American Civil Liberties Union and the American Civil Liberties Union Foundation.
Emily E. Daughtry, Esq., John D. Clopper, Esq., U.S. Attorney's Office, SDNY, New York, NY, for Defendants.
Plaintiffs The New York Times Company and Charlie Savage (together, the “New York Times”) and the American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the “ACLU”) bring these actions against the United States Department of Justice (the “DOJ”) and the Federal Bureau of Investigation (the “FBI,” collectively, the “Government”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The New York Times and the ACLU seek the public disclosure of a classified report to Congress from the Attorney General and the Director of National Intelligence (the “Report”) regarding foreign intelligence collection authorized by section 215 of the USA PATRIOT Act (the “Patriot Act”). The parties move for summary judgment in 11 Civ. 6990 (the “ New York Times action”) and partial summary judgment in 11 Civ. 7562 (the “ ACLU action”). For the following reasons, Plaintiffs' motions are denied, and the Government's motions are granted.
Section 215 of the Patriot Act authorizes the Government to apply to the Foreign Intelligence Surveillance Court for an order directing the production of “any tangible things” for certain investigations. 50 U.S.C. § 1861(a)(1). The Government contends that its use of this authority is critical to countering national security threats. It represents that public disclosure of the Report would expose sensitive intelligence sources and methods to America's adversaries and therefore harm national security.
In response, the New York Times and the ACLU note that two United States Senators—Senator Ron Wyden of Oregon and Senator Mark Udall of Colorado—stated publicly that the Executive Branch misled Congress and the American public about its broad interpretation of section 215. See 157 Cong. Rec. S3386 (daily ed. May 26, 2011) (statement of Sen. Wyden) (“[M]any Members of Congress have no idea how the law is being secretly interpreted by the executive branch[.]”); see also 157 Cong. Rec. S3389 (daily ed. May 26, 2011) (statement of Sen. Udall) (“[W]hat most people—including many Members of Congress—believe the PATRIOT Act allows the government to do ... and what government officials privately believe the PATRIOT Act allows them to do are two different things.”). According to the New York Times and the ACLU, the Senators' comments suggest that the Government is withholding the Report in bad faith.
On May 27, 2011, New York Times reporter Charlie Savage (“Savage”) submitted a FOIA request to the DOJ's Office of Information Policy (“Off”) seeking the Report. (Declaration of Nabiha Syed, dated Mar. 19, 2012 (“Syed Decl.”), Ex. B.) On June 22, 2011, Savage forwarded the request to the DOJ's National Security Division (“NSD”). (Syed Decl. ¶ 4 and Ex. B.) On August 2, 2011, NSD denied Savage's request. (Syed Decl. ¶ 9 and Ex. D.) On August 19, 2011, the New York Times appealed the denial to OIP. (Syed Decl. ¶ 11 and Ex. E.) On October 5, 2011—after the deadline for an administrative determination on the appeal passed—the New York Times commenced this litigation. (Syed Decl. ¶ 17.)
By letter dated September 30, 2011—but received by the New York Times after the commencement of this litigation—OIP informed the New York Times that the Report was properly withheld, but the DOJ Department Review Committee would determine whether it should remain classified. (Syed Decl. ¶ 19 and Ex. I.) According to the Government, such referrals to the Review Committee occur as a matter of course, (Letter from Emily Daughtry to the Court, dated May 8, 2012) (11 Civ. 6990, ECF No. 25.)
On May 31, 2011, the ACLU filed a FOIA request with the FBI and the DOJ's OIP, Office of Public Affairs, Office of Legal Counsel, and NSD seeking “all records concerning the government's interpretation or use of Section 215.” On August 22, 2011, NSD released three documents in response to the request and stated that it would withhold other documents, including the Report sought by the New York Times. After filing and losing two administrative appeals, the ACLU filed this suit on October 26, 2011. (ACLU Compl. ¶¶ 38–44.) The ACLU's other FOIA requests are not before the Court on these motions.
Summary judgment should be rendered if the record shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has made an initial showing that there is no genuine dispute of material fact, the non-moving party cannot rely on the “mere existence of a scintilla of evidence” to defeat summary judgment but must set forth “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original); see also Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir.2003).
“A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita, 475 U.S. at 586–87, 106 S.Ct. 1348). The Court resolves all factual ambiguities and draws all inferences in favor of the non-moving party. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505;see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005). Where, as here, both parties move for summary judgment, each party's motion “must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir.2001).
In a FOIA case, “[a]ffidavits and declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption [from the obligation to disclose] are sufficient to sustain the agency's burden.” Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994) (footnote omitted). “[T]he general rule in this Circuit is that in FOIA actions, agency affidavits alone will support a grant of summary judgment,” and Local Civil Rule 56.1 statements are not required. Ferguson v. FBI, No. 89 Civ. 5071(RPP), 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995), aff'd,83 F.3d 41 (2d Cir.1996).
FOIA represents Congress's balance “between the right of the public to know and the need of the Government to keep information in confidence.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (quoting H.R. Rep. 89–1497, 89th Cong., 2d Sess. 6 (1966), 1966 U.S.C.C.A.N. 2418, 2423) (internal quotation marks omitted). Thus, while FOIA requires public disclosure of many government documents, disclosure is not required if “the documents fall within [the statute's] enumerated exceptions.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal citations omitted). FOIA's exemptions are “narrowly construed,” and all doubts “are to be resolved in favor of disclosure.” ACLU v. Dep't of Def., 543 F.3d 59, 66 (2d Cir.2008), vacated on other grounds and remanded,––– U.S. ––––, 130 S.Ct. 777, 175 L.Ed.2d 508 (2009).
Courts review exemption claims de novo, and it is the Government's burden “to justify the withholding of any requested documents.” Associated Press v. U.S. Dep't of Def., 554 F.3d 274, 283 (2d Cir.2009) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)) (internal quotation marks omitted); see also5 U.S.C. § 552(a)(4)(B). To carry its burden, the Government must submit declarations with the “reasonable specificity” needed to facilitate meaningful review. Halpern v. FBI, 181 F.3d 279, 293 (2d Cir.1999). However, declarations in FOIA cases need not contain “factual descriptions that if made public would compromise the secret nature of the information[.]” Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384–85 (D.C.Cir.1979) (quoting Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.Cir.1973)) (internal quotation marks omitted).
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