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Case TitleFox News Network, LLC v. United States Department of the Treasury
DistrictSouthern District of New York
CityFoley Square
Case Number1:2009cv03045
Date Filed2009-03-30
Date Closed2013-01-17
JudgeMagistrate Judge Frank Maas
PlaintiffFox News Network, LLC
DefendantUnited States Department of the Treasury
AppealSecond Circuit 13-2716
AppealSecond Circuit 13-2893
Appeal
Documents
Docket
Complaint
Opinion/Order [29]
FOIA Project Annotation: After reviewing the documents in camera, a federal magistrate judge in New York has ruled that the Treasury Department properly withheld many of the records under Exemption 5 (privileges), but that some of them did not qualify for protection under the deliberative process privilege. The records focused on Treasury's restructuring of AIG's financial assistance plan as well as records pertaining to bonuses AIG paid to its executives. Magistrate Judge Frank Maas divided the records into several subject categories. One category involved a joint press release by Treasury and the Federal Reserve. Finding they were covered by the deliberative process privilege, Maas noted that "as the draft releases and related emails show, the Federal Reserve Board and Treasury initially crafted separate draft statements, which were shared and later combined into one statement. The unredacted documents also confirm that there were ongoing negotiations within each agency and between them concerning the content of the policy to be announced, whether the language accurately reflected that policy, and how the language itself might affect the contemplated transaction in the future. This kind of back-and-forth discussion to hammer out the details of contemplated transactions and refine the message to reflect the agency's developing position accurately is precisely what the deliberative process privilege is intended to protect." Maas found some emails concerning Secretary Timothy Geithner's awareness of the bonus payments issue were not protected. He pointed out that "Treasury has failed to point to any later substantive policy decision that was furthered by this discussion, which simply rehearses past events. Treasury also has redacted discussions of the timeline of when the agency became aware of the payments, including tentative dates that required confirmation. These tentative dates are not alternative substantive policy choices occupying space in the draft until a final decision is made. Rather, they are historical approximations that await confirmation. Such factual material is plainly outside the scope of the deliberative process privilege." Reviewing an email thread concerning a speech Geithner was to give, Maas observed that "the material is predominantly backward-looking and explains decisions that the agency previously had made. Second, the redacted text consists entirely of commentary on the messages and themes to include in the Secretary's speech. Accordingly, the document is concerned with packaging the agency's opinion for the public and must be released in full."
Issues: Exemption 5 - Privileges
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2009-03-271COMPLAINT against United States Department of the Treasury. (Filing Fee $ 350.00, Receipt Number 682837)Document filed by Fox News Network, LLC.(mbe) (Entered: 03/31/2009)
2009-03-27SUMMONS ISSUED as to United States Department of the Treasury. (mbe) (Entered: 03/31/2009)
2009-03-30CASE REFERRED TO Judge Richard J. Holwell as possibly related to 1:08-cv-11009. (mbe) (Entered: 03/31/2009)
2009-03-30Case Designated ECF. (mbe) (Entered: 03/31/2009)
2009-03-303RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying News Corporation as Corporate Parent. Document filed by Fox News Network, LLC.(ama) (Entered: 04/01/2009)
2009-04-012AFFIDAVIT OF SERVICE. United States Department of the Treasury served on 3/30/2009, answer due 5/29/2009. Service was made by Mail. Document filed by Fox News Network, LLC. (Ostensen, Paul) (Entered: 04/01/2009)
2009-04-06CASE ACCEPTED AS RELATED. Create association to 1:08-cv-11009-RJH. Notice of Assignment to follow. (rdz) (Entered: 04/06/2009)
2009-04-064NOTICE OF CASE ASSIGNMENT to Judge Richard J. Holwell. (rdz) (Entered: 04/06/2009)
2009-04-06Magistrate Judge Frank Mass is so designated. (rdz) (Entered: 04/06/2009)
2009-04-065ENDORSED LETTER addressed to Judge Richard J. Holwell from Steven G. Mintz dated 3/31/2009 re: Counsel respectfully request that the Court conduct a conference to set a schedule by which the U.S. Department of Treasury ("Treasury") must respond to Fox Business's most recent request under the Freedom of Information Act, 5 U.S.C. 552 ("FOlA"). ENDORSEMENT: A conference shall be held on April 17, 2009 at 9:30 a.m. (Next PTC - 4/17/09, 9:30 a.m.) So Ordered. (Signed by Judge Richard J. Holwell on 4/2/2009) (jfe) (Entered: 04/06/2009)
2009-04-306ANSWER to Complaint. Document filed by United States Department of the Treasury.(Fornos, Carolina) (Entered: 04/30/2009)
2009-05-01Minute Entry for proceedings held before Judge Richard J. Holwell: Status Conference held on 5/1/2009. The Court entered the following order: The parties to meet and confer on disputes on Vaugn Index by 5/15/09. Defendants to file support filings by 6/15/09. Plaintiff to file opposition by 7/15/09 and defendants to file reply by 7/29/09. (mro) (Entered: 05/15/2009)
2009-05-197ORDER; At a conference held May 1, 2009, the parties agreed to the following schedule: May 29, 2009: Defendant begins rolling production of documents responsive to plaintiffs FOIA request, June 30, 2009: Defendant completes rolling production, July 15, 2009: Defendant produces Vaughn index of documents that were completely withheld, July 29, 2009: Defendant produces Vaughn index of documents that were redacted. (Signed by Judge Richard J. Holwell on 4/4/09) (pl) (Entered: 05/19/2009)
2009-07-138ENDORSED LETTER addressed to Judge Richard J. Holwell from Carolina A. Fornos dated 6/30/09 re: counsel for defendant requests a three week extension of the current deadlines as set forth by this Court's order dated 5/4/09 as follows: 7/21/09 the Government completes rolling production; 8/5/09 the government produces Vaughn index of documents that were completely withheld; 8/18/09 the government produces Vaughn index of documents that were redacted. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Holwell on 7/9/09) (dle) (Entered: 07/13/2009)
2009-11-039ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Dispositive Motion (i.e., motion requiring a Report and Recommendation) Particular Motion(s): Motion for Summary Judgment 22 in action 08 Civ. 11009; Cross-Motion for Summary Judgment 43 in action 08 Civ. 11009. Referred to Magistrate Judge Frank Maas. (Signed by Judge Richard J. Holwell on 11/2/09) (tro) (Entered: 11/03/2009)
2010-01-2710ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Steven G. Mintz dated 1/27/2010 re: We propose that plaintiffs submission be due on February 12, 2010, and that argument be scheduled after March 8, 2010. ENDORSEMENT: Approved. The argument will be held 3/19/10 at 10 am., ( Responses due by 2/12/2010, Oral Argument set for 3/19/2010 at 10:00 AM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 1/27/2010) (jmi) (Entered: 01/28/2010)
2010-02-0911ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Steven G. Mintz dated 2/9/2010 re: Requesting that submission be due February 16, 2010 and that the oral argument remain as scheduled. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 2/9/2010) (jpo) (Entered: 02/11/2010)
2010-02-09Set Deadlines/Hearings: Responses due by 2/16/2010 (jpo) (Entered: 02/11/2010)
2011-01-0512NOTICE OF APPEARANCE by John Dalton Clopper on behalf of United States Department of the Treasury (Clopper, John) (Entered: 01/05/2011)
2011-01-0513ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Steven G. Mintz dated 1/5/11 re: counsel for plaintiff request that the Court instruct Treasury to come forward with a properly itemized Vaughn Index within the next two weeks. We further propose that the Court convene a conference and establish a schedule for briefing and argument of summary judgment motions in the event that Treasury persists in claiming FOIA exemptions that Your Honor has already indicated may not properly be claimed. ENDORSEMENT: the Court will hold a conference to discuss these issues on January 12, 2011, at 4pm in courtroom 20A. If this date and time are not feasible, counsel should place a conference call to my chambers to reschedule. (Signed by Magistrate Judge Frank Maas on 1/5/11) (pl) (Entered: 01/06/2011)
2011-01-1214NOTICE OF APPEARANCE by Terence William McCormick on behalf of Fox News Network, LLC (McCormick, Terence) (Entered: 01/12/2011)
2011-01-1415ORDER. It is hereby ORDERED that: 1. By February 14, 2011, the Government shall produce its revised Vaughn index for the documents withheld in case 09 Civ. 3045 ("Fox II") under Exemption 5. 2. By February 18, 2011, the Government shall communicate to Fox its counter proposal with respect to Fox's application for attorneys' fees in case 08 Civ. 11009 ("Fox I"). 3. By February 25, 2011, the Government shall produce its revised Vaughn index in Fox II under Exemption 4. 4. A telephone conference shall be held on March 1,2011, at 10:00 a.m. Counsel for Fox should initiate the call. 5. By March 4, 2011, if the parties have not resolved the issue of attorneys' fees in Fox I, the Government shall serve its papers in opposition to Fox's application for attorneys' fees. 6. By March 18, 2011, Fox shall serve its reply to the Government's papers in opposition to Fox's fee application. 7. By April 1, 2011, any motion(s) for summary judgment in Fox II shall be served and filed. 8. By April 29, 2011, any opposition papers to summary judgment motions shall be served and filed. Relates to 08-11009, 09-3045. (Signed by Magistrate Judge Frank Maas on 1/14/11) Copies Sent By Chambers. (rjm) (Entered: 01/18/2011)
2011-01-14Set Deadlines/Hearings: Motions due by 4/1/2011. Responses due by 4/29/2011 Telephone Conference set for 3/1/2011 at 10:00 AM before Magistrate Judge Frank Maas. (rjm) (Entered: 01/18/2011)
2011-03-2916ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Steven G. Mintz dated 3/29/2011 re: Counsel requests that the date by which Fox News shall submit a motion for summary judgment be extended through and including 5/5/2011. ENDORSEMENT: APPLICATION GRANTED. (Motions due by 5/5/2011.) (Signed by Magistrate Judge Frank Maas on 3/29/2011) (tro) (Entered: 03/30/2011)
2011-05-3117ORDER: This case, Fox News Network, LLC v. United States Department of the Treasury, 09 Civ. 03045, (Fox News II), was referred to Judge Maas for a Report and Recommendation on dispositive motions in Fox News Ion November 3, 2009. The parties are directed to apprise the Court why this case should not likewise be referred to Judge Maas for all purposes within ten days of the date of this order. (Signed by Judge Richard J. Holwell on 5/26/2011) (js) (Entered: 05/31/2011)
2011-05-3118ENDORSED LETTER addressed to Magistrate Judge Frank Maas from John D. Clopper dated 5/27/2011 re: The Government writes to request a two-week extension, until 6/16/2011, to file the Government's opposition to Fox's motion for summary judgment. ENDORSEMENT: APPLICATION GRANTED. (Responses due by 6/16/2011) (Signed by Magistrate Judge Frank Maas on 5/31/2011) (ab) (Entered: 06/01/2011)
2011-06-0719CONSENT TO JURISDICTION BY A US MAGISTRATE JUDGE by Fox News Network, LLC, United States Department of the Treasury. (Case No Longer Referred to Magistrate Judge) CASE ASSIGNED to Magistrate Judge Frank Maas. (Signed by Judge Richard J. Holwell on 6/6/2011) (jfe) (Entered: 06/07/2011)
2011-09-2320ORDER: It Is Hereby ORDERED that Treasury shall submit forthwith, for in camera review, unredacted copies of the documents listed in its Revised Vaughn Index. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 9/23/2011) Copies Sent By Chambers. (ama) (Entered: 09/23/2011)
2012-11-2621LETTER MOTION for Summary Judgment from Fox News Network, LLC, dated 5/5/2011. Document filed by Fox News Network, LLC.(tro) (Entered: 11/26/2012)
2012-11-2622LETTER RESPONSE to re: 21 LETTER MOTION for Summary Judgment, from U.S. Dept. of Treasury, dated 6/16/2011. Document filed by United States Department of the Treasury. (tro) (Entered: 11/26/2012)
2012-11-2623Letter addressed to Magistrate Judge Frank Maas from Steven G. Mintz dated 8/16/2012 re: Counsel for plaintiff, write in connection with the pending cross-motions for summary judgment, which were presented in the form of letter briefs as of 6/16/2011. Document filed by Fox News Network, LLC.(tro) (Entered: 11/26/2012)
2012-11-2624Letter addressed to Magistrate Judge Frank Maas from John D. Clopper dated 9/26/2011 re: Counsel for defendant writes in response to the Court's 9/23/2011 Order directing the Department of the Treasury to submit documents for in camera review. Document filed by United States Department of the Treasury.(tro) (Entered: 11/26/2012)
2012-11-2625Letter addressed to Magistrate Judge Frank Maas from Steven G. Mintz dated 9/30/2011 re: Counsel for plaintiff write in response to the letter of 9/26/2011, from counsel for the defendant, United States Department of the Treasury, John D. Clopper, Esq. Document filed by Fox News Network, LLC.(tro) (Entered: 11/26/2012)
2012-11-2626Letter addressed to Magistrate Judge Frank Maas from John D. Clopper dated 10/3/2011 re: Government requests that the Court deny Fox's untimely challenge to the Government's claim of privilege. Document filed by United States Department of the Treasury.(tro) (Entered: 11/26/2012)
2012-11-2627EXHIBIT (Declaration Of Joseph J. Samarias) to ECF 22. Document filed by United States Department of the Treasury.(tro) (Entered: 11/26/2012)
2012-11-2628EXHIBIT (Attachment to Letter Brief of Steven G. Mintz, Esq. in Support of Motion for Summary Judgment of Fox News Network, LLC) to ECF 21. Document filed by Fox News Network, LLC.(tro) (Entered: 11/26/2012)
2012-11-2629DECISION AND ORDER re: 21 MOTION for Summary Judgment, filed by Fox News Network, LLC, re: 22 Response to Motion filed by United States Department of the Treasury. For the reasons, set forth herein Fox's letter-motion for summary judgment, (ECF No. 21), and Treasury's cross letter-motion for summary judgment, (ECF No. 22), both are granted in part and denied in part. The Court will hold a telephone conference on December 3, 2012, at 3 p.m., to determine whether there are any further issues requiring resolution before this case is closed. Counsel for Fox should initiate that call. ( Telephone Conference set for 12/3/2012 at 03:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 11/26/2012) Copies Sent By Chambers. (ja) (Entered: 11/27/2012)
2012-11-26Transmission to Judgments and Orders Clerk. Transmitted re: 29 Order, Set Hearings, to the Judgments and Orders Clerk. (ja) (Entered: 11/27/2012)
2012-12-03Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 12/3/2012. (cd) (Entered: 12/04/2012)
2013-01-1730JUDGMENT That for the reasons stated in the Court's Decision and Order entered on November 27, 2012, the Plaintiff's motion for summary judgment dated May 5, 2011, which requested that the Court enter an injunction ordering the Defendant to release certain documents described in the said motion pursuant to FOIA, and the Defendant's cross-motion for summary judgment filed on June 16, 2011, which requested a judgment that the documents identified therein were properly withheld pursuant to exemptions listed in FOIA, are granted in part and denied in part, respectively, as specified in the Court's Decision and Order entered on November 27, 2012, and the Defendant is hereby ordered to disclose to the Plaintiff those documents or portions of documents identified in said Decision and Order that are to be released pursuant to FOIA; accordingly the case is closed, without prejudice to the Court's future consideration of Plaintiff's application for attorney's fees and costs and all other post-judgment proceedings. (Signed by Magistrate Judge Frank Maas on 1/17/13) (Attachments: # 1 Notice of Right to Appeal)(ml) (Entered: 01/18/2013)
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