Am. Civil Liberties Union v. NSA, No. 13-09198, 2017 WL 1155910 (S.D.N.Y. Mar. 27, 2017) (Wood, J.)

Am. Civil Liberties Union v. NSA, No. 13-09198, 2017 WL 1155910 (S.D.N.Y. Mar. 27, 2017) (Wood, J.)

Re: Requests for certain records concerning E.O. 12,333

Disposition: Granting in part and denying in part defendants' motion for summary judgment; denying plaintiffs' motion for summary judgment

• Litigation Considerations, Adequacy of Search: The court holds that "[d]efendants' motion for summary judgment as to the adequacy of FBI's, NSD's, and CIA's searches is denied." First, the court finds that the "FBI must, at the least, detail its search with greater specificity, and, if FBI is unable to do so, it may be necessary to conduct, and properly document, additional searches." The court explains that "'searching for records without tracking how those searches are conducted makes it impossible for a reviewing court (or plaintiffs) to determine what the agency has actually done to search its files.'" The court also finds that the "FBI should confirm that no other record system is likely to contain responsive documents, clarify the scope of the search conducted in the Office of the General Counsel, and address whether the Intelligence Branch is likely to produce responsive documents." Second, the court finds that "NSD's failure to identify any search terms or methods makes summary judgment in its favor inappropriate." The court also finds that "[NSD] may not limit a search because additional responsive documents may not be 'significant.'" Third, the court finds that "CIA has failed to provide sufficient information for Plaintiffs or the Court to reasonably assess the search efforts undertaken." "Neither the Court nor Plaintiffs are able to evaluate or confirm whether the duplicative and non-responsive results were attributable to the search's comprehensiveness or, for example, human error." "Given the lack of information about the search methods used, the Court can only speculate about whether CIA's efforts were reasonably expected to produce the information requested."
   
• Exemption 5, Deliberative Process Privilege & Work-Product Privilege: The court grants in part and denies in part defendants' motion regarding their use of Exemption 5. First, "[t]he Court finds that OLC has sufficiently justified its exemptions under the deliberative process and attorney-client privileges." The court explains that "[c]ourts routinely find that OLC legal memoranda are protected by the deliberative process privilege." Also, the court finds that, "[a]lthough Plaintiffs argue that these memoranda were relied upon . . . there is no indication that these memoranda were 'adopted, formally or informally, as the agency position on an issue' or 'used by the agency in its dealings with the public.'" Second, the court finds that NSD appropriately withheld "a 'draft of the DHS Procedures Governing Activities of the Office of Intelligence and Analysis that Affect United States Persons[,]'" "'classified OLC legal advice memoranda,'" "a 'memorandum from the Attorney General to the President that reveals advice and recommendations relating to an NSA program[,]'" and "'discuss[ions of] legal issues pertaining to an NSA program[.]'" However, "the Court cannot conclude that the attorney-client privilege or the deliberative process privilege applies to each of [the group of memoranda at issue] in their entirety[]" because defendant only describes Exemption 5 as applying to "'[t]he vast majority of these memoranda[.]'" Third, similar to the last point regarding NSD's action, the court finds that "CIA is invited to further supplement its description of these documents to better describe these documents so that the Court may determine whether these documents constitute working law." "[T]he Court cannot conclude that Exemption 5 applies [to other documents]: for the exemption to apply, an agency must 'be able to demonstrate that, ex ante, the document for which executive privilege is claimed related to a specific decision facing the agency,' which these training materials do not do." The court does find that some memoranda were appropriately withheld, however. Fourth, the court again takes issue with the description of the "'vast majority of the memoranda[,]'" this time proffered by NSD. "The Court [also] cannot determine whether [certain] documents contain working law or have not been adopted."
   
• Exemptions 1 & 3: "[G]iving appropriate deference to the assessment of the agencies, the Court finds it logical and plausible that there is no segregable non-exempt content contained in the legal memoranda withheld in full." "The Court credits Defendants' declarations that affirm that disclosure of these documents would tend to cause harm to the national security and would reveal intelligence sources and methods." "The documents were properly withheld under Exemptions 1 and 3[.]" Responding to plaintiff's objection, the court holds that "disclosure of even pure legal analysis concerning covert intelligence operations could jeopardize those operations." The court also finds that most withheld inspector general and compliance reports were appropriately withheld. However, the court does holds that "[d]efendants do not address in their reply whether they did conduct a line-by-line segregability review on . . . thirteen documents." The court also finds that defendant appropriately withheld a training slide which "'contains details about specific intelligence collection techniques' that, if disclosed, would reveal 'how intelligence is obtained [and] would permit the targets of those efforts to evade detection, which in turn could reasonably be expected to cause damage to the national security.'" However, the court finds that "[d]efendants shall inform the Court of the result[]" of a review to determine whether some information on another training slide has already been disclosed. The court upholds the withholding of other training material, as well as information which "'describes and pertains to intelligence activities, sources, and methods utilized by the FBI in gathering intelligence information,' . . . such that the release of such information would 'disrupt the FBI's intelligence-gathering capabilities and could cause serious damage to our national security[.]'" The court also finds appropriate the NSA's withholding of "documents 'implement[ing] EO 12333 and prescribe[ing] policies and procedures for ensuring that SIGINT is conducted in accordance with the EO and applicable law.'" The court also finds that defendants' appropriately withheld documents which "'describe[] and pertain[] to intelligence activities, sources, and methods utilized by the FBI in gathering intelligence information[,]'" as well as "'information relating to intelligence sources, including detailed and specific discussion and guidance on the rules for legally collecting intelligence on sensitive source categories and explaining those sensitive source categories.'"
   
• Exemptions 7(D) & 7(E): The court holds that "[d]efendants have met their burden regarding Exemption 7." "As the supplemental FBI declaration states, 'each of these records identify a clear and direct nexus to the FBI's law enforcement duties[,] [s]pecifically, how the FBI collects, disseminates and retains intelligence is all part of its law enforcement mission.'" "These investigations are, by definition, both criminal in nature and for the purpose of collecting intelligence.'" "Releasing the information in all of these documents would 'provide subjects and their associates with non-public information pertaining to the FBI's obligations or internal procedures under EO 12333 allowing these individuals to develop countermeasure to avoid detection and surveillance by the FBI, thus nullifying the effectiveness of these important investigative/national security techniques/procedures.'"
   
• Procedural Requirements, Responding to FOIA Requests: The court denies "[p]laintiffs [request for] reprocessing . . . in light of documents that have been recently released by the Government that may have been officially acknowledged[]" because, "'[a]s a general rule, a FOIA decision is evaluated as of the time it was made and not at the time of a court’s review.'"
   
• Litigation Considerations, In Camera Inspection: "The Court finds that in camera review is premature at this time and invites the Government to supplement its submissions and Plaintiffs to respond."