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Am. Civil Liberties Union v. DOJ, No. 12-794, 2015 WL 4470192 (S.D.N.Y. July 16, 2015) (McMahon. J.)


Am. Civil Liberties Union v. DOJ, No. 12-794, 2015 WL 4470192 (S.D.N.Y. July 16, 2015) (McMahon. J.)

Re: Request for certain documents concerning drone program

Disposition: Ordering defendants' to produce certain redacted documents and certain unredacted documents to plaintiff; otherwise granting defendants' motion for summary judgment

  • Waiver:  The court finds that plaintiff's "position that official acknowledgement of a fact constitutes waiver with respect to the any [sic] information that is 'similar' to the information disclosed . . . is overbroad; 'similar' is not a synonym for 'matching.'"  The court finds that much of what plaintiff argues has been officially acknowledged has indeed been officially acknowledged.  Specifically, certain documents which "may touch on legality, but . . . [do] not track the information disclosed in the OLC–DOD Memorandum or the Draft White Paper," to the extent those documents contain "'officially acknowledged' information as found by the court" those documents "should be produced in redacted form."

However, the court is "unable to conclude that the Government has waived FOIA exemptions for [a] document" discussing "whether the CIA should continue to play any 'operational role' in targeted killings using drones" because "where CIA classified material is concerned, Congress has no role to play in 'official acknowledgement,' so individual members' willingness to discuss this subject openly, despite its status as classified, has no legal significance."  Additionally, with regard to many of the documents at issue, the court finds that there "has been no waiver of these exemptions by virtue of the release of the OLC–DOD Memorandum, or the Draft White Paper, or any other public statement that has been brought to the attention of the court by [plaintiff]."

  • Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that some documents "be produced for in camera review . . . [because] portions of those documents might be segregable."  "In addition, the CIA will have to conduct a new segregability review, in light of the court's conclusion that certain [information has] been officially acknowledged."  The court also orders, for the same reasons, that "OLC [also] produce [certain] documents . . . for in camera review."

However, the court finds that certain "information (much of which has been publicly disclosed in other documents) is too inextricably intertwined with information as to which there has been no waiver of exemptions by virtue of the release of the OLC–DOD Memorandum and the Draft White Paper to permit it to be reasonably segregated."

  • Litigation Considerations, In Camera Review:  The court holds that, with regard to certain documents, "[i]t is not possible to ascertain whether the privileges with respect to some, or all, of [these documents] have been waived—or whether there are reasonably segregable portions of the document[s] that could be disclosed because the legal analysis mirrors the analysis that has been waived—without reviewing the document[s]."  Therefore, the court orders in camera review of these documents.
  • Exemptions 1, 3, 5:  The court holds that certain "document[s] [are] exempt under Exemptions (b)(1) and (b)(5)."  The court also holds that certain documents are exempt under Exemption (b)(3).  However, the court also orders the release of other documents because "there is absolutely no FOIA privilege[s] appurtenant to [them] that [have] not been waived."
  • Glomar:  The court "conclude[s] that official acknowledgement that (1) [two individuals] were killed, coupled with (2) after-the-fact analysis [that] is routinely done to determine the lawfulness of all drone strikes (including, presumably, the ones that killed these two individuals) does not constitute 'official acknowledgement' of 'the existence or nonexistence of the specific records sought by the FOIA request.'"  The court explains "that a Glomar response may be interposed by an agency even where the Executive Branch has officially acknowledged the existence and contours of a program concerning which records are sought."  Here, the court relates, "CIA's Glomar response is 'tethered' to Exemption 3, in that disclosure is barred by the CIA Act."  "Responding to the ACLU's request could reveal whether the U.S. Government was aware of facts that the ACLU assumes to be true:  that the CIA was aware of [one individual's] presence with [another]; that the Government either took measures to avoid his death or did not do so and that CIA had an intelligence interest in [two named individuals] or both."  The court also holds that "[t]he above discussion upholding the propriety of the Glomar response interposed by the CIA applies equally to DoD."  The court does note that, even though it did not occur in this instance,  "[t]he principal difference between the two agencies is that a disclosure by any Executive Branch official can be sufficient to waive privilege with respect to the DoD, whereas only disclosure by an official of the CIA itself waives privilege with respect to the CIA."
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 5
Litigation Considerations, In Camera Inspection
Procedural Requirements, “Reasonably Segregable” Obligation
Waiver and Discretionary Disclosure
Updated January 12, 2022