Case Detail

FOIA Project Annotation: Judge Christopher Cooper has ruled that a 1984 memo written by Ted Olson when he worked at the Justice Department's Office of Legal Counsel concerning the constitutionality of electronic surveillance is covered by Exemption 5 (attorney-client privilege). The Olson memo, which was prepared for the National Security Agency and had been referenced in congressional testimony in the past, was requested by New York Times reporter Charlie Savage. Although the memo was classified, the agency relied on Exemption 5 as the basis for withholding it. Savage argued that the attorney-client privilege had been waived because of the public references and DOJ's failure to ensure its confidentiality, and, alternatively, because it constituted the agency's working law. Savage emphasized that Olson's memo was technically written for the Attorney General, not the NSA, but Cooper found that argument too much. He noted instead that "the agency is the client who sought and ultimately received OLC's legal advice regarding its proposed activities. And that protection for the agency's confidential communications to its attorney is not lost simply because one attorney (the Attorney General) consults with another (the Assistant Attorney General for OLC)." Cooper pointed out that Savage's argument would undermine the value of the privilege. "Without a guarantee of confidentiality, executive branch agencies, like all legal clients, would hesitate to share private details about planned agency actions with the Attorney General when seeking legal advice." To support his argument that the agency had failed to maintain the memo's confidentiality, Savage pointed to two instances in which OLC attorneys referred to the memo, one in a 2007 memo from OLC to the National Security Division, and the other in the context of supporting the agency's privilege claim in this litigation. Cooper indicated that "neither of these documents evince the sort of sharing of confidential information with unaffiliated third parties that destroys the attorney-client privilege." Savage also noted that the Olson memo came up during the Senate confirmation hearings for former Attorney General Loretta Lynch when Sen. Dianne Feinstein asked Lynch to provide a copy. Cooper explained that "the fact that members of the relevant Senate Committee did not have copies of the memo in 2015 cuts against the conclusion that the Olson Memo has been disseminated to third parties." Cooper found Savage's working law argument had been severely curtailed by the D.C. Circuit's ruling in EFF v. Dept of Justice, 739 F. 3d 1 (D.C. Cir. 2014), in which the D.C. Circuit rejected EFF's claim that a memo prepared by OLC for the FBI constituted the FBI's working law because the agency was not required to adopt OLC's advice. Cooper observed that "as with the FBI, OLC 'is not authorized to make decisions about' the NSA's activities or the Attorney General's approval thereof. And like the FBI, the Attorney General and NSA were 'free to decline to adopt' the reasoning or conclusions of the OLC opinion. Therefore, absent additional evidence that the Attorney General or NSA has affirmatively adopted the Olson Memo as their own policy and reasoning, the Olson memo does not constitute working law."
Issues: Exemption 5 - Privileges - Attorney-client privilege

Date Filed	Doc #	Docket Text
2017-01-13	1	COMPLAINT for Injunctive and Declaratory Relief against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4805797) filed by THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE. (Attachments: # 1 Summons Request for Summons, # 2 Civil Cover Sheet, # 3 Rule 7.1 Certificate)(McCraw, David) (Entered: 01/13/2017)
2017-01-13	2	REQUEST FOR SUMMONS TO ISSUE to U.S. Attorney General filed by NEW YORK TIMES COMPANY, CHARLIE SAVAGE. (Attachments: # 1 Summons Request for USAO Summons)(McCraw, David) (Entered: 01/13/2017)
2017-01-17		Case Assigned to Judge Christopher R. Cooper. (zsb) (Entered: 01/17/2017)
2017-01-17	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 01/17/2017)
2017-01-17	4	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NEW YORK TIMES COMPANY, CHARLIE SAVAGE identifying Corporate Parent GRUPO FINACIERO INBURSA, S.A.B. de C.V. for NEW YORK TIMES COMPANY. (zsb) (Entered: 01/17/2017)
2017-01-30	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 1/23/2017 (McCraw, David) (Entered: 01/30/2017)
2017-01-30	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/23/2017. (McCraw, David) (Entered: 01/30/2017)
2017-01-30	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/23/2017. Answer due for ALL FEDERAL DEFENDANTS by 2/22/2017. (McCraw, David) (Entered: 01/30/2017)
2017-02-22	8	NOTICE of Appearance by Julia A. Berman on behalf of U.S. DEPARTMENT OF JUSTICE (Berman, Julia) (Entered: 02/22/2017)
2017-02-22	9	ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Berman, Julia) (Entered: 02/22/2017)
2017-02-23		MINUTE ORDER: Before the Court in this FOIA case are 1 complaint and 9 answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure on or by March 9, 2017. Signed by Judge Christopher R. Cooper on 2/23/2017. (lccrc2) (Entered: 02/23/2017)
2017-02-23		Set/Reset Deadlines: Joint Proposed Briefing Schedule or Disclosure due by 3/9/2017. (zlsj) (Entered: 02/23/2017)
2017-03-09	10	STATUS REPORT Joint Proposed Schedule by NEW YORK TIMES COMPANY, CHARLIE SAVAGE. (McCraw, David) (Entered: 03/09/2017)
2017-03-14		MINUTE ORDER: In light of 10 parties' Joint Status Report, it is hereby ORDERED that the parties shall file a joint status report on or by March 20, 2017 informing the Court whether they intend to proceed to summary judgment and, if necessary, proposing a briefing schedule. Signed by Judge Christopher R. Cooper on 3/14/2017. (lccrc2) (Entered: 03/14/2017)
2017-03-14		Set/Reset Deadlines: Joint Status Report due by 3/20/2017. (zlsj) (Entered: 03/14/2017)
2017-03-20	11	PROPOSED BRIEFING SCHEDULE Joint Proposed Briefing Schedule by U.S. DEPARTMENT OF JUSTICE. (Berman, Julia) (Entered: 03/20/2017)
2017-03-22		MINUTE ORDER: In light of 11 parties' Proposed Briefing Schedule, it is hereby ORDERED that the summary-judgment briefing schedule be established as follows: Defendant's motion for summary judgment shall be due by May 5, 2017; Plaintiff's cross-motion for summary judgment and opposition to Defendant's motion shall be due by June 12, 2017; Defendant's reply in support of its motion and opposition to Plaintiff's motion shall be due by June 30, 2017; and Plaintiff's reply in support of its motion shall be due by July 21, 2017. Signed by Judge Christopher R. Cooper on 3/22/2017. (lccrc2) (Entered: 03/22/2017)
2017-03-22		Set/Reset Deadlines: Summary Judgment motions due by 5/5/2017. Plaintiff's Cross-Motion and Opposition to Defendant's Motion for Summary Judgment due by 6/12/2017. Defendant's Reply in Support of its Motion and Opposition to Plaintiff's Motion for Summary Judgment due by 6/30/2017. Plaintiff's Reply in Support of its Motion due by 6/21/2017. (lsj) (Entered: 03/22/2017)
2017-05-01	12	Consent MOTION to Bifurcate Briefing by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Berman, Julia) (Entered: 05/01/2017)
2017-05-03		MINUTE ORDER granting 12 parties' Consent Motion to Bifurcate Briefing. It is hereby ORDERED that the parties' forthcoming cross-motions for summary judgment, pursuant to the schedule set forth in the Court's March 22, 2017 Minute Order, may be limited to Defendant's assertion of FOIA Exemption 5 as the basis for withholding in full the two documents at issue in this matter. It is further ORDERED that the bifurcation does not affect Defendant's ability to assert at a later date FOIA Exemptions 1 and 3 to withhold portions of those same documents, if necessary. Signed by Judge Christopher R. Cooper on 5/3/2017. (lccrc2) (Entered: 05/03/2017)
2017-05-05	13	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit 1, # 2 Statement of Facts, # 3 Text of Proposed Order)(Berman, Julia) (Entered: 05/05/2017)
2017-06-12	14	Cross MOTION for Partial Summary Judgment by NEW YORK TIMES COMPANY, CHARLIE SAVAGE (Attachments: # 1 Declaration of David E. McCraw & Exhibits, # 2 Statement of Facts, # 3 Text of Proposed Order)(McCraw, David) (Entered: 06/12/2017)
2017-06-12	15	Memorandum in opposition to re 13 MOTION for Summary Judgment filed by NEW YORK TIMES COMPANY, CHARLIE SAVAGE. (Attachments: # 1 Declaration of David E. McCraw & Exhibits, # 2 Statement of Facts, # 3 Text of Proposed Order)(McCraw, David) (Entered: 06/12/2017)
2017-06-30	16	REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Statement of Facts, # 3 Text of Proposed Order)(Berman, Julia) (Entered: 06/30/2017)
2017-06-30	17	Memorandum in opposition re 14 Cross MOTION for Partial Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Statement of Facts, # 3 Text of Proposed Order)(Berman, Julia) Modified event title on 7/24/2017 (znmw). (Entered: 06/30/2017)
2017-07-21	18	REPLY to opposition to motion re 14 Cross MOTION for Partial Summary Judgment filed by NEW YORK TIMES COMPANY, CHARLIE SAVAGE. (McCraw, David) (Entered: 07/21/2017)
2017-10-20	19	ORDER granting 13 Defendant's Motion for Summary Judgment and denying 14 Plaintiffs' Motion for Partial Summary Judgment. For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that the Defendant's Motion for Summary Judgment is granted and Plaintiffs' Motion for Partial Summary Judgment is denied. Signed by Judge Christopher R. Cooper on 10/20/2017. (lccrc2) (Entered: 10/20/2017)
2017-10-20	20	MEMORANDUM OPINION re 19 Order Granting Defendant's Motion for Summary Judgment and Denying Plaintiffs' Motion for Partial Summary Judgment. Signed by Judge Christopher R. Cooper on 10/20/2017. (lccrc2) (Entered: 10/20/2017)
Hide Docket Events