Osen LLC v. Off. of Foreign Assets Control of the U.S. Dep’t of Treasury, No. 19-405, 2023 WL 5935026 (S.D.N.Y. Sept. 12, 2023) (Vyskocil, J.)
Osen LLC v. Off. of Foreign Assets Control of the U.S. Dep’t of Treasury, No. 19-405, 2023 WL 5935026 (S.D.N.Y. Sept. 12, 2023) (Vyskocil, J.)
Re: Request for memoranda and evidentiary packages recommending that U.S. government designate three named entities for sanctions
Disposition: Granting defendant’s motion for summary judgment
- Exemption 1: The court relates that “[i]n the public versions of its brief and the Wolverton Declarations . . . , [the Office of Foreign Assets Control of the United States Department of Treasury (“OFAC”)] explains in general terms why all of its contested withholdings are proper under Exemption 1 and Exemption 3.” “The Court has carefully reviewed the classified agency affidavits that OFAC submitted in connection with this motion.” “The classified agency affidavits support and substantiate OFAC’s public representations.” “The Court finds that OFAC has properly asserted Exemption 1 and Exemption 3 and has disclosed reasonably segregable information.” “In the public version of [defendant’s] Declaration, . . . a Department of Treasury official with original classification authority furnishes the bases for the classification of the records that OFAC withheld under Exemption 1.” “[Defendant’s declarant] explains that one or more original classification authorities classified the information withheld pursuant to Exemption 1, which consists of foreign government information, intelligence sources or methods, cryptology, and the foreign relations or foreign activities of the United States, including confidential sources.” “And he affirms that ‘disclosure of this information could reasonably be expected to cause serious or exceptionally grave damage to national security.’” “[Defendant] also explains in general terms the nature of the potential damages, including that it could: ‘reveal the strengths, weaknesses, and gaps in United States government intelligence coverage’; ‘reveal the resources and capacity of the United States government to collect and share certain types of intelligence at different points in time’; ‘reveal whether or not certain organizations within the U.S. intelligence community have collected or reviewed intelligence relating to specific entities or persons’; enable ‘adversaries [to] alter their behavior to avoid detection or use countermeasures to undermine U.S. intelligence capabilities and render collection efforts ineffective’; and compromise the future use of ‘sources, techniques, and methods’ and potentially risk harm to specific individuals.” “The classified agency affidavits that OFAC lodged with the Court support these representations with additional information.” “After careful review, the Court finds that the classified declarations provide ‘reasonably specific detail’ and ‘demonstrate that the information withheld logically falls within the claimed exemption.’” “Moreover, the Court finds no evidence of agency bad faith, nor any other reason to second-guess the facially plausible predictions of harm to national security set forth in the classified declarations.” “The Court further finds, based on information in the classified agency affidavits, that OFAC released all reasonably segregable information.”
- Exemption 3: The court finds that “OFAC has likewise properly asserted Exemption 3.” “As noted above, Exemption 3 exempts from disclosure under FOIA information that other statutes prohibit the agency from disclosing.” “Here, OFAC has withheld information about intelligence sources and methods pursuant to 50 U.S.C. § 3024(i)(1) of the National Security Act.” “OFAC has also withheld, under Exemption 3, information protected by the Defense Intelligence Agency pursuant to a separate statute, which provides that ‘no provision of law shall be construed to require the disclosure of’ either ‘the organization or any function of’ certain specified intelligence organizations within the Department of Defense.” “Based on the Court’s careful review of the classified affidavits OFAC submitted, the withheld materials fall within the coverage of these statutes.”
- Litigation Considerations, Vaughn Index/Declaration & In Camera Inspection: The court relates that “[o]ne of [plaintiff’s] principal complaints is that OFAC has given Osen too little information to effectively contest OFAC’s withholdings.” “But [plaintiff] has contested the withholdings by bringing this case.” “And the Court has conducted a careful ex parte review of the classified agency affidavits that justify, with ‘reasonably specific detail’ the contested withholdings.” “The Court appreciates that the abstract descriptions in OFAC’s public submissions, including the Unclassified Vaughn Index – and, now, in this Opinion – may not be completely satisfying to a litigant.” “However, while the Court is ‘mindful of our legal system’s preference for open court proceedings,’ in this context, the Court’s ‘ex parte, in camera review of . . . classified materials’ is the appropriate response to [plaintiff’s] challenges.” “And, ultimately, a Vaughn Index and agency explanation are tools for the district court, ‘not ends in themselves.’”