Am. Civil Liberties Union v. DOJ, No. 13-7347, 2015 WL 892245 (S.D.N.Y. Mar. 3, 2015) (Woods, J.)

Am. Civil Liberties Union v. DOJ, No. 13-7347, 2015 WL 892245 (S.D.N.Y. Mar. 3, 2015) (Woods, J.)

Re: Request for records concerning policy on giving notice of intent to use evidence derived from warrantless surveillance

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Procedural considerations, Searching for Responsive Records:  "The Court finds that NSD appropriately construed [one portion of plaintiff's request] to seek final documents, as indicated by the term 'governing.'"  The court holds that "DOJ is bound to read [plaintiff's] request as drafted, and because [one portion] seeks records 'addressing or interpreting,' rather than 'governing,' NSD improperly limited its search under [this portion]."  "DOJ is ordered to conduct a new search that comports with the actual terms of [this portion] of [plaintiff's] request and to release any responsive records that do not fall under a FOIA exemption."  However, the court finds that "[e]xcept as described above, DOJ's search was reasonable."
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product, Attorney-Client Privilege:  The court holds that defendant properly invoked Exemption 5 to withhold certain documents.  First, concerning two memoranda, the court finds that "the documents themselves-make legal recommendations and discuss a broader, ongoing deliberative process regarding the government's FISA and FAA notice obligations," and, therefore, "these memos are both predecisional and deliberative, and thus are exempt from disclosure under the deliberative process privilege."  "Because each memo discusses particular cases, it also falls within the attorney work product privilege and may be withheld on that ground as well."  Second, regarding another memorandum, the court finds that it "summarizes the discussions that took place during a predecisional, deliberative meeting [and,] [a]s such, it goes to the core of what the deliberative process privilege is designed to protect."  Additionally, "to the extent [this memorandum] discusses particular cases, it also falls within the attorney work product privilege and may be withheld on that ground."  Third, regarding two more memoranda, the court finds that both  "consist of straightforward legal analysis of potential future actions that DOJ might-or might not-take, and is thus both predecisional and deliberative."  Finally, the court holds that "[n]one of the documents at issue here have been expressly adopted by DOJ or incorporated by reference in any final policy statements."  The court specifically notes that "there are no statements by the Attorney General or other high-level DOJ officials specifically referencing particular documents, and certainly none expressly relying on the reasoning put forth in a particular document."  The court also finds that "having viewed the documents in camera, there is no indication that any of the documents have become DOJ's effective law and policy."  Additionally, [a]fter in camera review of the documents, the Court finds there are no reasonably segregable portions of any of the withheld documents."