New York Times v. DOJ, No. 14-328, 2015 WL 1454939 (S.D.N.Y. Mar. 31, 2015) (Cote, J.)

New York Times v. DOJ, No. 14-328, 2015 WL 1454939 (S.D.N.Y. Mar. 31, 2015) (Cote, J.)

Re: Request for records concerning ATF policy changes following Supreme Court decision in United States v. Jones

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

• Exemption 5, Attorney-Client Privilege:  The court holds that "a redacted internal ATF email that was sent to all ATF Special Agents in Charge" was "properly withheld."  The court explains that "[t]he communication is between . . . an ATF attorney[] and employees of ATF, and was kept confidential."  "The email is intended to provide legal guidance to ATF personnel."  "The redacted paragraphs describe [the ATF attorney's] perceptions of the 'best practices' in the immediate wake of Jones."  Additionally, "[t]he paragraphs are not properly characterized as a 'final opinion[ ]' or a 'statement[ ] of policy and interpretation[ ] adopted by' ATF that would otherwise constitute working law."
   
• Exemption 5, Attorney Work-Product:  First, the court holds that "two internal ATF emails" were properly withheld because they "provide[d] guidance on steps prosecutors should take to minimize the impact of Jones on anticipated litigation" and because "[t]here is no indication that ATF adopted the guidelines described by the DAG as its own final policy."  Second, the court holds that an "email contain[ing] text copied from a guidance document originating with the FBI" was properly withheld.  The court relates that "[t]he unredacted text generated by ATF personnel reads: 'An FYI, this is what the FBI sent out.'"  The court finds that "[t]he argument that [this e-mail] constitutes ATF's working law fails."  "The email was sent on the day after the Jones decision."  "There is no basis to find that ATF adopted on that day as its own policy the preliminary guidance given by the FBI."  Additionally, the court finds that, "based on the present record, the defendant has shown that [this e-mail] does not constitute the working law of the FBI."  "The guidance was drafted within hours of the Jones decision."  "In this sense, it is much closer in form and function to predecisional, deliberative documents."  Third, the court holds that three memoranda are withholdable.  The first, a "Final Guidance Memo, directed to prosecutors, advises prosecutors on how to represent the Government in future litigation, and discusses possible legal challenges to Government actions, potential defenses, and likely outcomes."  The court finds that "[t]his is precisely the kind of document that is prepared 'because of the prospect of litigation' and would not exist in similar form absent such a possibility."  The second, "[t]he Cheat Sheet Memo, which summarizes the key points of the Final Guidance Memo, also describes the best defenses and likely legal challenges to the actions of ATF personnel."  "Thus, the Cheat Sheet Memo is also protected by the work product privilege."  The third, "[t]he Agent Guidance Memo, directed at ATF agents, and sent to ATF personnel, incorporates by reference the assessments made in the Final Guidance Memo."  "It does not instruct agents to take specific actions" but rather was written "to aid them in identifying situations where consultation with the U.S. Attorney's Office or Divisional Counsel is necessary" and is therefore properly withholdable.  Fourth, the court finds that "redacted text in [an] email describing the Final Guidance memorandum is not subject to disclosure" because it "discusses specific points in the memoranda and includes informal comments describing the creation of memoranda."  "The email is therefore exempt from disclosure under FOIA to the same extent as the underlying memoranda."
   
• Exemption 7(E):  The court holds that "specific factual scenarios and . . . technical aspects of GPS tracking devices" contained in "an internal email sent . . . to ATF Special Agents in Charge" were properly withheld because "ATF has shown that these redactions were properly made under Exemption 7(E) because the release of the requested information would create a risk of a circumvention of the law."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  "Following in camera review, the Court is satisfied that all reasonably segregable non-exempt portions of the disputed documents have been disclosed."