252 F. Supp. 3d 217
S.D.N.Y.2017Background
- ACLU requested DOJ records about DOJ’s policy on notifying defendants when using evidence from warrantless surveillance under the FISA Amendments Act (FAA).\
- DOJ located ~80 responsive documents and withheld all under FOIA Exemption 5 (privileges, including work product).\
- Prior rulings (2015, 2016) resolved search adequacy and applied Exemption 5 to many NSD documents, but left EOUSA documents and NSD Doc. No. 7 unresolved and ordered further proof and a segregability analysis.\
- DOJ filed a renewed summary-judgment motion with enhanced declarations asserting attorney work-product protection for EOUSA documents and NSD Doc. No. 7 and a segregability analysis for all withheld records.\
- Court reviewed DOJ affidavits, found they sufficiently show the records were prepared in anticipation of litigation and that exempt material is not reasonably segregable, and granted DOJ summary judgment.\
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EOUSA documents and NSD Doc. No. 7 are protected by the attorney work-product doctrine | Declarations are conclusory; legal analysis untethered to particular cases is not sufficiently tied to impending litigation; working-law doctrine defeats protection | Declarations show documents were prepared by government attorneys "with an eye toward litigation" about FAA notice issues and would not exist in similar form but for anticipated prosecutions | Court: Documents are attorney work product; Exemption 5 applies |
| Whether any withheld documents contain reasonably segregable non-exempt information | DOJ must release non-exempt portions; some legal text or minimal facts could be produced | DOJ says documents are short (1–38 pages), not logically divisible, and any non-privileged material is inextricably intertwined or of minimal value | Court: No reasonably segregable non-exempt material; DOJ entitled to withhold whole documents under Exemption 5 |
Key Cases Cited
- United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998) (work-product protection applies when documents were prepared because of the prospect of litigation)\
- Nat'l Ass'n of Criminal Def. Lawyers v. U.S. Dep't of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246 (D.C. Cir. 2016) (guidance/manuals prepared for prosecutors can be work product; discussion of segregability in voluminous records)\
- Wilner v. Nat. Sec. Agency, 592 F.3d 60 (2d Cir. 2009) (agency affidavits can carry the agency's FOIA burden if reasonably detailed)\
- Tax Analysts v. I.R.S., 117 F.3d 607 (D.C. Cir. 1997) (work product protection covers factual and opinion material prepared in anticipation of litigation)\
- Hopkins v. U.S. Dep't of Housing & Urban Dev., 929 F.2d 81 (2d Cir. 1991) (non-exempt material that is inextricably intertwined with exempt material need not be disclosed)