ACLU v. NSA, No. 17-3399, 2019 WL 2295077 (2d Cir. May 30, 2019) (Cabranes, J.)

ACLU v. NSA, No. 17-3399, 2019 WL 2295077 (2d Cir. May 30, 2019) (Cabranes, J.)

Re:  Request for legal authority for certain national security programs

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Exemption 5, Attorney-Client Privilege:  "[The Court of Appeals for the Second Circuit] affirm[s] the conclusion of the District Court that OLC 10 is exempt from disclosure under FOIA Exemption 5."  First, the court holds that the memo "was prepared by [the Assistant Attorney General for OLC] for an Executive Branch client (the Attorney General, and eventually, the President)."  "The document is thus a communication between an attorney and a client."  "Second, the memorandum was written with the understanding that 'OLC legal advice is generally kept confidential,' it was 'communicated in confidence,' and 'none of [its redacted portions] have been previously publicly disclosed.'"  "And third, by its own description, OLC 10 is one in a series of memoranda which 'advised' the Attorney General that certain presidential actions 'would satisfy relevant constitutional standards.'"  "Moreover, as we have previously explained, OLC memoranda 'provide, in their specific contexts, legal advice as to what a department or agency is permitted to do.'"  "The communication thus provided legal assistance."  Finally, the court rejects the requester's argument that the government waived its ability to claim this privilege due to official acknowledgment, finding that "informational disclosures have no effect on whether a communication is protected by the attorney-client privilege."  For this reason, the court finds that "the attorney-client privilege is not 'lost by the mere fact that the information communicated [between attorney and client] is otherwise available to the public.'"
   
• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Second Circuit holds that, "[i]n addition to the attorney-client privilege, OLC 10 also meets the requirements of the 'deliberative process privilege.'"  The court explains that "[t]he document responds to the Attorney General's request that OLC undertake a 'thorough reexamination' of the legality of presidential directives concerning Stellar Wind."  "As OLC 10 explains, the Attorney General would consult OLC advice (such as OLC 10) in choosing whether to approve the program 'as to form and legality.'"  "OLC 10 thus preceded and directly related to the Attorney General's approval decision."  Finally, responding to the requester's objections, the court finds that "OLC 10 was drafted as legal advice rather than binding authority and so was not 'working law' when created," and also that "there is no evidence that the Government ever 'adopted' OLC 10 as binding; nor has the ACLU identified a single agency opinion that incorporates OLC 10 by reference."
   
• Exemptions 1 & 3:  "[The Court of Appeals for the Second Circuit] also affirm[s] the District Court's holding that the six intelligence program documents are exempt from disclosure under FOIA Exemptions 1 and 3."  Specific to Exemption 3, the court relates that "the Government has invoked several statutes, including the National Security Act, which requires that the Director of National Intelligence 'protect intelligence sources and methods from unauthorized disclosure.'"  The court finds that "[t]he requested intelligence program documents concern highly sensitive surveillance programs."  "A senior intelligence official has attested that each disputed document concerns 'particular intelligence sources, and related methods used to collect and process foreign communications'; that the existence of these sources and methods is 'currently and properly classified'; and that disclosure of any meaningful part of these documents 'would reveal core NSA foreign intelligence activities.'"  Additionally, regarding segregability, the court finds that "disclosure of even '[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because, much like a piece of [a] jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.'"  "Moreover, in this case, a senior national security official has affirmed that the legal analysis contained in these memoranda is 'inextricably intertwined' with material that is both classified and protected by statute."
   
• Procedural Requirements:  The Court of Appeals for the Second Circuit rejects "[the requester's] request that we 'order the re-processing' of the contested documents in light of several governmental disclosures that post-date the agency's initial FOIA decision."  The court "reaffirm[s] the general rule [that 'a FOIA decision is evaluated as of the time it was made and not at the time of a court's review'], and further hold that a court reviewing a FOIA decision must not order reprocessing simply to reassure itself that a correct decision remains current."