Am. Civil Liberties Union v. DOJ, No. 15-9002, 2017 WL 213812 (S.D.N.Y. Jan. 18, 2017) (Castel, J.)

Am. Civil Liberties Union v. DOJ, No. 15-9002, 2017 WL 213812 (S.D.N.Y. Jan. 18, 2017) (Castel, J.)

Re: Request for records concerning common commercial service agreements written by OLC

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 1: "After reviewing the government’s submissions, the Court is persuaded that the information in the Memorandum would reveal intelligence activities, sources, and methods, and that disclosure of the Memorandum would risk harm to the national security." "It may therefore be properly withheld under Exemption 1." "While FOIA requires this Court to undertake a de novo review of an agency's original classification decision, . . . there is no evidence to suggest that the Memorandum was not properly classified in the first instance." Responding to plaintiff's objection that defendant's declarant "does not have original classification authority," the court finds that "[it] is unavailing because the government's classified declarant possess[es] the appropriate classification authority." Additionally, responding to plaintiff's objection as to the adequacy of defendant's declaration, the court finds that, "[h]aving reviewed the government's Classified Declaration along with its unclassified submissions, the Court concludes that the government has said all that it can about the Memorandum publicly and any further disclosures would pose a risk to national security."
   
• Exemption 3: "As stated above, the Court has reviewed the government's classified and unclassified submissions and finds that the Memorandum was properly classified because its disclosure would expose sensitive intelligence sources and methods." "Therefore it is exempt from disclosure pursuant to the National Security Act and FOIA Exemption 3."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "After reviewing the government's submissions, and particularly the Classified Declaration, the Court concludes that . . . '[r]elease of any further information could breach the informational levee that FOIA exemptions are designed to protect.'" "This Court recognizes that it is unlikely that each and every word in the Memorandum is classified." "But case citations and quotations standing in a vacuum would be meaningless." "If sufficient context was disclosed to make the non-exempt material meaningful, the circumstances warranting the classification of the Memorandum would be revealed." "FOIA does not require redactions and disclosure to this extent."