New York Times Co. v. DOJ, No. 14-3777, 2017 WL 713560 (S.D.N.Y. Feb. 21, 2017) (Oetken, J.)

New York Times Co. v. DOJ, No. 14-3777, 2017 WL 713560 (S.D.N.Y. Feb. 21, 2017) (Oetken, J.)

Re: Request for five memoranda related to investigation into certain overseas interrogations

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

• Exemption 3: First, the court relates that "the Government relies on Federal Rule of Criminal Procedure 6(e) as the statute justifying its withholding of the four memoranda at issue." Second, "[t]he Court . . . grants summary judgment to the Times as to the inapplicability of Rule 6(e), as applied through FOIA Exemption 3, to . . . Recommendation Memoranda." The court finds that "the Recommendation Memoranda in this case were prepared to advise the Attorney General as to whether full criminal investigations were warranted, the scope of which may or may not include some future grand jury proceedings." Third, "[t]he Court . . . grants summary judgment to DOJ in part as to the withholding of . . . Declination Memoranda under Rule 6(e), applied through FOIA Exemption 3." The court finds that "the Declination Memoranda were prepared after 'extensive grand jury proceedings, including the issuance of grand jury subpoenas for witness testimony and documents[]'" and that "[t]he memoranda embody [defendant's] 'determination[ ] that the criminal investigations should be closed without further action.'" The court also relates that defendant states "that the memoranda 'reveal matter that occurred before the grand jury,' including 'the targets of the grand jury's investigations, . . . the identity of witnesses who appeared before the grand jury,' and 'the path of the grand jury's investigations into the two detainee deaths, including the prosecutors' strategy in investigating these deaths.'" However, the court finds that "this does not warrant withholding of the Declination Memoranda in their entirety[]" because, regarding information such as "the dates the grand jury served and the number of times it sat, . . . the Government does not make a legal case for why Rule 6(e) covers such administrative information." "Moreover, [defendant's] affidavit fails to indicate whether the Declination Memoranda include additional information outside of matters before the grand jury, such as matters relating solely to [defendant's] independent investigation."
   
• Exemptions 1 & 3: The court holds that "[t]he Government has . . . carried its burden under FOIA Exemption 1." The court relates that defendant "has invoked FOIA Exemptions 1 and 3 to protect six categories of information contained in the memoranda in this case: (1) information regarding human intelligence sources; (2) details concerning foreign liaison services; (3) the identities of covert personnel; (4) the locations of covert CIA installations and former detention centers located abroad; (5) descriptions of specific intelligence methods and tradecraft that are still in operational use; and (6) classification and dissemination control markings." "[Plaintiff] does not challenge the withholding of information under categories (1), (3), or (6)." "[T]he Court grants 'substantial deference' to [defendant's] affidavit, as it 'implicate [s] national security,' . . . and [plaintiff] does not challenge 'the truthfulness or sincerity of the declarants[.]" "Assessing the record 'on the whole,' as this Court is required to do, DOJ's withholding of 'the content of . . . communications' between the United States and foreign liaison services and foreign government officials, 'as well as the mere fact of the existence' of the Government's relationships with them . . ., 'objectively survives the test of reasonableness, good faith, specificity, and plausibility.'" Regarding category four, the court finds that "the Government has never officially acknowledged the locations of the CIA's covert facilities and installations . . . , and [plaintiff's] reliance on the alleged disclosure of such information by others does not function as official acknowledgement by the Government for purposes of waiver under the FOIA exemptions." Regarding the fifth category, the court finds that "the Government has shown with sufficient specificity and plausibility that the disclosure of details concerning intelligence gathering practices and CIA tradecraft that are still in use would undermine the usefulness of those methods, to the detriment of national security."
  
  "The Court alternatively concludes that DOJ has met its burden to withhold information from the categories in question under Exemption 3, incorporating the secrecy provisions of the CIA Act, 50 U.S.C. § 3507, and the National Security Act, 50 U.S.C. § 3024(i)(1)." The court relates that "the Government invokes both the National Security Act and the CIA Act to protect the details of foreign liaison relationships . . . and the National Security Act to protect the locations of covert CIA facilities abroad and CIA intelligence methods and tradecraft." The court finds that "Exemption 3, incorporating the National Security Act and CIA Act, provides the Government with discretion to withhold records where, as here, the information sought to be redacted and withheld falls within the broad scope of the claimed statue."
   

• Exemptions 6 & 7(C): "Balancing [the] interests, the Court grants summary judgment to DOJ to withhold identifying information of targets, witnesses, foreign officials, overt and covert CIA personnel, and human sources pursuant to Exemptions 6 and 7(C)." "This grant is to be narrowly limited to the [information at issue,] personally identifying information contained in the memoranda[.]" The court finds that "'third parties including witnesses, the targets of the investigations, covert and overt CIA personnel, foreign officials, and human sources,' whose personally identifying information is being withheld, have a strong privacy interest in not being identified with the Government's criminal investigation." The court also finds that "[plaintiff] does not allege that the identities of any of the individuals identified by the Government is necessary in order to confirm or refute compelling evidence that the agency engaged in illegal activity in drafting the memoranda."
   

• Exemption 5, Deliberative Process Privilege & Attorney Work-Product: The court holds that "the express adoption doctrine applies to the referenced exhibits, such that they do not fall under FOIA Exemption 5." The court explains that the exhibits "were 'collected and considered by [defendant] and [its] team in the course of their investigation[]'" and "[t]hose 'facts' upon which [defendant] relied in their reasoning or conclusions, which were later expressly adopted by the Attorney General, are subject to the express adoption doctrine as applied to the work-product doctrine." However, the court finds that another "section of the memoranda was not adopted by the Attorney General and is properly withheld under Exemption 5." The court finds that "unless the circumstances surrounding [an] appointment[, the issue discussed in this section,] are relevant to the reasoning and conclusion of the Recommendation Memoranda, which this Court struggles to imagine is the case, this section is not subject to the express adoption doctrine and is properly withheld under Exemption[5]."