Case Detail

FOIA Project Annotation: A federal court in New York has ruled that a 2003 memo prepared by the Justice Department's Office of Legal Counsel concerning common commercial service agreements is properly classified and that the agency properly withheld it under Exemption 1 (national security) and Exemption 3 (other statutes). The ACLU requested the memo after Sen. Ron Wyden (D-OR) revealed its existence and challenged its conclusions. In response to the ACLU's request, DOJ withheld the memo entirely under Exemption 5 (privileges) as well as Exemption 1 and Exemption 3. The ACLU appealed to the Office of Information Policy, but because the ACLU had already filed suit, OIP declined to address the appeal. However, in court, the government relied primarily on Exemption 1 and Exemption 3 as the basis for withholding the memo. Judge P. Kevin Castel agreed with the government's claims, noting that "there is no evidence to suggest that the Memorandum was not properly classified in the first instance. After reviewing the government's submissions, the Court is persuaded that the information in the Memorandum would reveal intelligence activities, sources, and methods, and that disclosure of the Memorandum would risk harm to the national security." Since he had found the memo was exempt under Exemption 1, Castel observed that it was also exempt under the National Security Act. The ACLU did not challenge the classification of the document, but argued that the government's affidavits were insufficient to support its claims. But Castel noted that "having reviewed the government's Classified Declaration along with its unclassified submissions, the Court concludes that the government has said all that it can about the Memorandum publicly and any further disclosures would pose a risk to national security." The ACLU argued that the legal analysis contained in the memo could be separated out and disclosed. Castel disagreed, pointing out that "this Court recognizes that it is unlikely that each and every word in the Memorandum is classified. But case citations and quotations standing in a vacuum would be meaningless. If sufficient context was disclosed to make the non-exempt material meaningful, the circumstances warranting the classification of the Memorandum would be revealed. FOIA does not require redactions and disclosure to this extent."
Issues: Exemption 1 - Properly classified, Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2015-11-17	1	COMPLAINT against Department of Justice of The United States, Office of Information Policy (OIP), Office of Legal Counsel. (Filing Fee $ 400.00, Receipt Number 0208-11634340)Document filed by American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit Exhibits to the complaint)(Abdo, Alexander) (Entered: 11/17/2015)
2015-11-17	2	CIVIL COVER SHEET filed. (Abdo, Alexander) (Entered: 11/17/2015)
2015-11-17	3	FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Attorney General Loretta E. Lynch, re: 1 Complaint,. Document filed by American Civil Liberties Union Foundation. (Abdo, Alexander) Modified on 11/18/2015 (pc). (Entered: 11/17/2015)
2015-11-17	4	REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of Justice, re: 1 Complaint,. Document filed by American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 11/17/2015)
2015-11-17	5	FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Attorney for the Southern District of New York, Civil-Process Clerk, re: 1 Complaint,. Document filed by American Civil Liberties Union Foundation. (Abdo, Alexander) Modified on 11/18/2015 (pc). (Entered: 11/17/2015)
2015-11-17	6	FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Office of Legal Counsel, re: 1 Complaint,. Document filed by American Civil Liberties Union Foundation. (Abdo, Alexander) Modified on 11/18/2015 (pc). (Entered: 11/17/2015)
2015-11-17	7	FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Office of Information Policy, re: 1 Complaint,. Document filed by American Civil Liberties Union Foundation. (Abdo, Alexander) Modified on 11/18/2015 (pc). (Entered: 11/17/2015)
2015-11-18		***NOTICE TO ATTORNEY REGARDING REMOVAL OF PARTY. Notice to attorney Alexander Abraham Abdo. The following party/parties has been removed from this case: Office of Information Policy and Office of Legal Counsel. The party was added to the case in error. (pc) (Entered: 11/18/2015)
2015-11-18		***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Alexander Abraham Abdo. The party information for the following party/parties has been modified: Department of Justice of The United States. The information for the party/parties has been modified for the following reason/reasons: party text was omitted. (pc) (Entered: 11/18/2015)
2015-11-18		***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE-FILE Document No. 7 Request for Issuance of Summons, 6 Request for Issuance of Summons, 5 Request for Issuance of Summons, 3 Request for Issuance of Summons,. The filing is deficient for the following reason(s): Parties listed on the summons are not on the pleading. (pc) (Entered: 11/18/2015)
2015-11-18		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge P. Kevin Castel. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (pc) (Entered: 11/18/2015)
2015-11-18		Magistrate Judge Frank Maas is so designated. (pc) (Entered: 11/18/2015)
2015-11-18		Case Designated ECF. (pc) (Entered: 11/18/2015)
2015-11-18	8	ELECTRONIC SUMMONS ISSUED as to Department of Justice of The United States. (pc) (Entered: 11/18/2015)
2015-11-18	9	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 11/18/2015)
2015-11-19	10	ORDER INITIAL PRETRIAL CONFERENCE: Initial Conference set for 1/22/2016 at 02:30 PM in Courtroom 11D, 500 Pearl Street, New York, NY 10007 before Judge P. Kevin Castel. (Signed by Judge P. Kevin Castel on 11/19/2015) (spo) (Entered: 11/19/2015)
2015-11-19	11	AFFIDAVIT OF SERVICE. Department of Justice of The United States served on 11/19/2015, answer due 12/10/2015. Service was made by Mail. Document filed by American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 11/19/2015)
2015-12-22	12	ANSWER to 1 Complaint,. Document filed by Department of Justice of The United States.(Chaudhury, Arastu) (Entered: 12/22/2015)
2016-01-12	13	LETTER addressed to Judge P. Kevin Castel from Alex Abdo and Arastu K. Chaudhury dated January 12, 2016 re: Initial pretrial conference and schedule. Document filed by American Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 01/12/2016)
2016-01-21	14	ENDORSED LETTER addressed to Judge P. Kevin Castel from Arastu K. Chaudhury and Alex Abdo dated 1/21/2016 re: Request for clarification in regards to conference. ENDORSEMENT: Counsel should appear for the conference by no case management plan is required. (Signed by Judge P. Kevin Castel on 1/21/2016) (spo) Modified on 2/3/2016 (spo). (Entered: 01/21/2016)
2016-01-22	15	ORDER FOLLOWING PRETRIAL CONFERENCE: The Schedule set forth in Section IV of the joint letter of January 12, 2016 (Doc 13) is adopted as an order of the Court. (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 1/22/2016) (spo) (Entered: 01/22/2016)
2016-01-22		Minute Entry for proceedings held before Judge P. Kevin Castel: Initial Pretrial Conference held on 1/22/2016. See, Order Following Pretrial Conference. (Nacanther, Florence) (Entered: 02/01/2016)
2016-02-24	16	LETTER MOTION for Extension of Time to File the Government's motion for summary judgment addressed to Judge P. Kevin Castel from Arastu K. Chaudhury dated February 24, 2016. Document filed by Department of Justice of The United States. (Attachments: # 1 Text of Proposed Order)(Chaudhury, Arastu) (Entered: 02/24/2016)
2016-02-25	17	REVISED SCHEDULING ORDER granting 16 Letter Motion for Extension of Time to File. IT IS HEREBY BY ORDERED that the Scheduling Order entered on January 22, 2016 (Dkt. Entry No. 15), is AMENDED as follows: 1. The Government shall file its motion for summary judgment on March 7, 2016; 2. Plaintiffs shall file their cross-motion and opposition to the Government's motion by April 4, 2016; 3. The Government shall file its reply and opposition to Plaintiffs' motion by April 25, 2016; and 4. Plaintiffs shall file their reply by May 16, 2016. (Signed by Judge P. Kevin Castel on 2/25/2016) (spo) (Entered: 02/25/2016)
2016-02-25		Set/Reset Deadlines: Cross Motions due by 4/4/2016. Motions due by 3/7/2016. Responses due by 4/25/2016. Replies due by 5/16/2016. (spo) (Entered: 02/25/2016)
2016-03-07	18	MOTION for Summary Judgment . Document filed by Department of Justice of The United States.(Chaudhury, Arastu) (Entered: 03/07/2016)
2016-03-07	19	MEMORANDUM OF LAW in Support re: 18 MOTION for Summary Judgment . . Document filed by Department of Justice of The United States. (Chaudhury, Arastu) (Entered: 03/07/2016)
2016-03-07	20	DECLARATION of Paul P. Colborn in Support re: 18 MOTION for Summary Judgment .. Document filed by Department of Justice of The United States. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Chaudhury, Arastu) (Entered: 03/07/2016)
2016-03-07	21	NOTICE of Lodging of Classified Document re: 18 MOTION for Summary Judgment .. Document filed by Department of Justice of The United States. (Chaudhury, Arastu) (Entered: 03/07/2016)
2016-03-30	22	BRIEF FOR SENATOR RON WYDEN AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS . Document filed by Ron Wyden.(Diskant, Gregory) (Entered: 03/30/2016)
2016-03-30	23	LETTER MOTION for Leave to File Amended Declaration addressed to Judge P. Kevin Castel from Arastu K. Chaudhury dated March 30, 2016. Document filed by Department of Justice of The United States. (Attachments: # 1 Exhibit Amended Declaration)(Chaudhury, Arastu) (Entered: 03/30/2016)
2016-03-31	24	ORDER granting 23 Letter Motion for Leave to File Amended Declaration. Application Granted. (Signed by Judge P. Kevin Castel on 3/30/2016) (spo) (Entered: 03/31/2016)
2016-04-01	25	DECLARATION of Paul P. Colborn in Support re: 18 MOTION for Summary Judgment ., 23 LETTER MOTION for Leave to File Amended Declaration addressed to Judge P. Kevin Castel from Arastu K. Chaudhury dated March 30, 2016.. Document filed by Department of Justice of The United States. (Chaudhury, Arastu) (Entered: 04/01/2016)
2016-04-04	26	CROSS MOTION for Summary Judgment . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 04/04/2016)
2016-04-04	27	MEMORANDUM OF LAW in Support re: 26 CROSS MOTION for Summary Judgment . Also filed in Opposition to Defendants' Motion for Summary Judgment . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 04/04/2016)
2016-04-04	28	DECLARATION of Eliza Sweren-Becker in Support re: 26 CROSS MOTION for Summary Judgment .. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit Wyden Letter to Holder 2012, # 2 Exhibit Wyden Letter to Brennan, # 3 Exhibit Wyden Questions for the Record, # 4 Exhibit Wyden Letter to Holder 2015, # 5 Exhibit Wyden Letter to Lynch, # 6 Exhibit FOIA Request, # 7 Exhibit OLC Response to Request, # 8 Exhibit Administrative Appeal, # 9 Exhibit First Bradbury Declaration, # 10 Exhibit Second Bradbury Declaration, # 11 Exhibit Krass Hearing Transcript)(Abdo, Alexander) (Entered: 04/04/2016)
2016-04-12	29	NOTICE OF APPEARANCE by Eliza Sweren-Becker on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Sweren-Becker, Eliza) (Entered: 04/12/2016)
2016-04-18	30	LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge P. Kevin Castel from Arastu K. Chaudhury dated April 18, 2016. Document filed by Department of Justice of The United States. (Attachments: # 1 Text of Proposed Order)(Chaudhury, Arastu) (Entered: 04/18/2016)
2016-04-18	31	SECOND REVISED ORDER granting 30 Letter Motion for Extension of Time to File Response/Reply re 26 CROSS MOTION for Summary Judgment . IT IS HEREBY BY ORDERED that the Revised Scheduling Order entered on February 25, 2016 (Dkt. Entry No. 17), is AMENDED as follows: 1. The Government shall file its reply and opposition to Plaintiffs' cross-motion for summary judgment by May 5, 2016; and 2. Plaintiffs shall file their reply by May 26, 2016. (Responses due by 5/5/2016.) (Replies due by 5/26/2016.) (Signed by Judge P. Kevin Castel on 4/18/2016) (spo) (Entered: 04/18/2016)
2016-05-05	32	REPLY MEMORANDUM OF LAW in Support re: 18 MOTION for Summary Judgment . and in opposition to Plaintiffs' cross-motion for summary judgment . Document filed by Department of Justice of The United States. (Chaudhury, Arastu) (Entered: 05/05/2016)
2016-05-05	33	DECLARATION of Arastu K. Chaudhury in Support re: 18 MOTION for Summary Judgment .. Document filed by Department of Justice of The United States. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Chaudhury, Arastu) (Entered: 05/05/2016)
2016-05-05	34	NOTICE of of Lodging of Classified Document re: 18 MOTION for Summary Judgment .. Document filed by Department of Justice of The United States. (Chaudhury, Arastu) (Entered: 05/05/2016)
2016-05-26	35	REPLY MEMORANDUM OF LAW in Support re: 26 CROSS MOTION for Summary Judgment . . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Sweren-Becker, Eliza) (Entered: 05/26/2016)
2016-08-10	36	MOTION for Eliza Sweren-Becker to Withdraw as Attorney . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Sweren-Becker, Eliza) (Entered: 08/10/2016)
2016-11-04	37	MEMO ENDORSEMENT granting 36 Motion to Withdraw as Attorney. ENDORSEMENT: Motion granted. SO ORDERED. Attorney Eliza Sweren-Becker terminated. (Signed by Judge P. Kevin Castel on 11/4/2016) (kl) Modified on 11/4/2016 (kl). Modified on 11/4/2016 (kl). (Entered: 11/04/2016)
2016-12-19	38	NOTICE OF APPEARANCE by Ashley Marie Gorski on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Gorski, Ashley) (Entered: 12/19/2016)
2017-01-03	39	MOTION for Alex Abdo to Withdraw as Attorney . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 01/03/2017)
2017-01-18	40	MEMORANDUM AND ORDER granting 18 Motion for Summary Judgment; denying 26 Motion for Summary Judgment. "Recognizing the relative competencies of the executive and judiciary,...it is bad law and bad policy to 'second-guess the predictive judgments made by the government's intelligence agencies' regarding questions such as whether disclosure of [classified] records would pose a threat to national security." Wilner, 592 F.3d at 76 (quoting Larson, 565 F.3d at 865 (D.C. Cir. 2009)). As set forth above, the Court finds that the government properly withheld the Memorandum under Exemptions 1 and 3. Therefore, defendants' motion for summary judgment is GRANTED and plaintiffs' cross-motion for summary judgment is DENIED. (As further set forth in this Memorandum and Order.). (Signed by Judge P. Kevin Castel on 1/18/2017) (mro) (Entered: 01/18/2017)
2017-01-18		Transmission to Judgments and Orders Clerk. Transmitted re: 40 Order on Motion for Summary Judgment, to the Judgments and Orders Clerk. (mro) (Entered: 01/18/2017)
2017-01-19	41	CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memorandum and Order dated January 18, 2017, "Recognizing the relative competencies of the executive and judiciary,...it is bad law and bad policy to 'second-guess the predictive judgments made by the government's intelligence agencies' regarding questions such as whether disclosure of [classified] records would pose a threat to national security." Wilner, 592 F.3d at 76 (quoting Larson, 565 F.3d at 865 (D.C. Cir. 2009)). As set forth in the Order, the Court finds that the government properly withheld the Memorandum under Exemptions 1 and 3. Therefore, Defendants' motion for summary judgment is granted and Plaintiffs' cross-motion for summary judgment is denied. (Signed by Clerk of Court Ruby Krajick on 1/19/2017) (Attachments: # 1 Right to Appeal, # 2 Right to Appeal)(km) (Entered: 01/19/2017)
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