229 F. Supp. 3d 259
S.D.N.Y.2017Background
- In March 2015 the ACLU requested a 2003 OLC memorandum on "common commercial service agreements." The OLC located the Memorandum but withheld it.
- OLC initially cited Exemption 5 (deliberative process/attorney-client) and indicated the Memorandum was classified and possibly exempt under Exemptions 1 and 3.
- The ACLU administratively appealed and then filed this FOIA suit in November 2015 after the appeal was not acted on.
- The government moved for summary judgment invoking FOIA Exemptions 1, 3, and 5; ACLU cross-moved to compel disclosure.
- The Court reviewed both public filings and classified submissions in camera and concluded the Memorandum was properly withheld under Exemptions 1 and 3; it declined to reach Exemption 5.
- The Court also held the government satisfied the segregability requirement because any meaningful disclosure would reveal classified intelligence sources, methods, or context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Memorandum is properly classified under Exemption 1 | Government's public declarations are boilerplate and OLC declarant lacks original classification authority | Memorandum reveals intelligence activities/sources/methods and classified declarant has authority | Held: Properly classified under Exec. Order; Exemption 1 applies |
| Whether Exemption 3 (statutory withholding) applies | ACLU did not dispute statute but argued public justifications insufficient | National Security Act protects intelligence sources and methods; Memorandum falls within statute | Held: Exemption 3 applies via National Security Act |
| Whether agency must disclose legal analysis (segregability) | ACLU: Legal analysis should be disclosable; agency failed to show no segregable, non-exempt portions | Government: Legal analysis is entwined with classified facts such that redaction would reveal protected information | Held: No reasonably segregable, non-exempt portions can be released without revealing protected material |
| Adequacy of public justifications and review standard | ACLU: public declarations are conclusory boilerplate and insufficient | Government: Classified declaration (reviewed in camera) fills in needed detail; courts must defer on national security with substantial weight to agency affidavits | Held: Public record + classified in camera review sufficient; agency met its burden |
Key Cases Cited
- Carney v. U.S. Dep’t of Justice, 19 F.3d 807 (2d Cir.) (agency bears burden to show withheld records fall within a FOIA exemption)
- Wilner v. Nat’l Sec. Agency, 592 F.3d 60 (2d Cir. 2010) (agency declarations require logical or plausible justification; afford presumption of good faith)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (conclusory or overly vague affidavits insufficient; but courts must balance secrecy concerns)
- Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381 (D.C. Cir. 1979) (in camera review of classified materials permissible where public justification would reveal secrets)
- C.I.A. v. Sims, 471 U.S. 159 (U.S. 1985) (Exemption 3 can be satisfied by statute shielding intelligence information)
- N.Y. Times Co. v. U.S. Dep’t of Justice, 872 F.Supp.2d 309 (S.D.N.Y. 2012) (courts may review classified submissions in camera and limit public detail to avoid harm)
- Am. Civil Liberties Union v. Dep’t of Justice, 681 F.3d 61 (2d Cir. 2012) (in national security FOIA suits, courts must accord substantial weight to agency affidavits regarding classified status)