Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the Office of the Director of National Intelligence, the National Security Agency, and the National Security Division at the Justice Department had so far failed to show why statistical data and legal memoranda pertaining to surveillance conducted under the FISA Amendments Act of 2008 is protected by Exemption 1 (national security) and Exemption 3 (other statutes). Judge Richard Sullivan noted that the ONDI had failed "to make the required showing that the information 'logically falls' within Exemption 1. [Its] declaration 'gives no contextual description. . .of the specific redactions made to the various documents' and fails even to identify the provisions of Executive Order 13,526 that purportedly apply." He pointed out that "with respect to Exemption 3, the {ONDI] Declaration offers a single sentence. . .But 'conclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not carry the government burden.' The affidavit here is no exception. Mere invocation of the exemption statute, coupled with 'b3' labels throughout the redacted documents, is simply not enough." Turning to the NSD, Sullivan explained that "by proffering conclusory and nearly identical justifications for the various NSD withholdings, the government appears to assume that de novo FOIA review requires little more than a judicial spell check. Because 'blind deference is precisely what Congress rejected when it amended FOIA in 1974,' the Court finds the [NSD] Declaration insufficient to justify the NSD withholdings under Exemption 1." Sullivan found the NSA's affidavit fell short as well. He observed that "while it is possible that disclosure of the 'frequency of the Government's use of specific techniques' could, under certain circumstances, implicate national security concerns, a substantial portion of Plaintiffs' requests target information regarding alleged misuse and abuse of FAA, such as the number of U.S. persons who have been targeted. The [NSA] Declaration does not 'identify or describe' the risks to national security that would accompany disclosure of such information." Sullivan indicated that the portions of the NSA affidavits pertaining to non-statistical data were more plausible. But he noted that "but plausibility is not 'reasonable specificity,' and the [NSA] Declaration still fails to supply anything more than 'vague and conclusory' assertions that 'read much like bureaucratic double-talk.'" The NSA failed on Exemption 3 claims as well. Sullivan indicated that "based on the public [NSA] affidavit, the Court cannot say that the 'very nature' of Plaintiffs' statistical requests concerns the 'activities' of the NSA within the meaning of section 6 of the National Security Act. The single conclusory sentence that seeks to justify the NSA withholdings is similarly insufficient with respect to the remaining exemption statutes." Sullivan found the agencies' classified affidavits little better than their public ones. He noted that "it is far from clear to the Court why disclosure of the number of United States citizens or residents subject to FAA surveillance logically reveals the scope of NSA activity. . .Agencies may not classify information simply to 'conceal violations of law, inefficiency, or administrative error,' or to 'prevent embarrassment' to the agency. Without an actual explanation as to why disclosure 'would reveal the scope of NSA's collection activities,' the Court simply cannot engage in a meaningful de novo review as is required by law." Rather than strike the classified affidavits altogether, as requested by the plaintiffs, Sullivan decided to look at the documents in camera. He observed that "in this case, the Court is persuaded that limited in camera review is both necessary and appropriate in order to satisfy the Court's 'independent responsibility' to conduct de novo review."
Issues: Exemption 1 - Harm to national security, Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2010-06-03	1	COMPLAINT against Office of the Director of National Intelligence, Department of Justice, National Security Agency/Central Security Service, Department of Defense. (Filing Fee $ 350.00, Receipt Number 905701)Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(rdz) (Entered: 06/04/2010)
2010-06-03		SUMMONS ISSUED as to Office of the Director of National Intelligence, Department of Justice, National Security Agency/Central Security Service, Department of Defense. (rdz) (Entered: 06/04/2010)
2010-06-03		Magistrate Judge Kevin Nathaniel Fox is so designated. (rdz) (Entered: 06/04/2010)
2010-06-03		Case Designated ECF. (rdz) (Entered: 06/04/2010)
2010-06-03	2	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(rdz) (Entered: 06/04/2010)
2010-06-07	3	NOTICE OF APPEARANCE by Melissa Goodman on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Goodman, Melissa) (Entered: 06/07/2010)
2010-07-02	4	ORDER: IT IS HEREBY ORDERED THAT Defendants shall answer or otherwise respond to the complaint by August 5, 2010. IT IS FURTHER ORDERED THAT the parties shall appear for a status conference on August 19, 2010 at 11:00 a.m. in Courtroom 21C of the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York. IT IS FURTHER ORDERED THAT, by August 11, 2010 at 4:00 p.m., the parties shall jointly submit a letter, not to exceed five (5) pages, providing the following information set forth within this Order in separate paragraphs. IT IS FURTHER ORDERED THAT, by August 11, 2010 at 4:00 p.m., the parties shall submit to the Court a proposed case management plan and scheduling order. (Signed by Judge Richard J. Sullivan on 7/2/2010) (jfe) (Entered: 07/06/2010)
2010-07-14	5	AFFIDAVIT OF SERVICE of Summons served on Department of Defense on June 11, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
2010-07-14	6	AFFIDAVIT OF SERVICE of Summons served on Department of Justice on June 15, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
2010-07-14	7	AFFIDAVIT OF SERVICE of Summons served on National Security Agency/Central Security Service on June 9, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
2010-07-14	8	AFFIDAVIT OF SERVICE of Summons served on Office of the Director of National Intelligence on June 14, 2010. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Goodman, Melissa) (Entered: 07/14/2010)
2010-08-05	9	ANSWER to Complaint. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence.(Fornos, Carolina) (Entered: 08/05/2010)
2010-08-11	10	NOTICE OF APPEARANCE by Benjamin H. Torrance on behalf of Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence (Torrance, Benjamin) (Entered: 08/11/2010)
2010-08-11	11	NOTICE OF APPEARANCE by Carolina A. Fornos on behalf of Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence (Fornos, Carolina) (Entered: 08/11/2010)
2010-08-13	12	STIPULATION AND ORDER Regarding FOIA Request as set forth in this order. (Signed by Judge Richard J. Sullivan on 8/13/2010) (jmi) (Entered: 08/13/2010)
2010-08-20	13	ORDER THAT, by December 17,2010, the parties shall submit a joint letter apprising the Court of the status of the parties' negotiations and their views concerning potential motions. SO ORDERED. (Status Report due by 12/17/2010.) (Signed by Judge Richard J. Sullivan on 8/19/2010) (jmi) Modified on 8/20/2010 (jmi). (Entered: 08/20/2010)
2010-11-10	14	ENDORSED LETTER addressed to Judge Richard J. Sullivan from Benjamin H. Torrance dated 11/9/10 re: With the consent of plaintiffs' counsel, the government respectfully requests an extension of time to December 17, 2010 to provide the Court with a joint letter regarding the status of the case. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 11/10/10) (djc) (Entered: 11/10/2010)
2010-11-29	15	NOTICE OF APPEARANCE by Alexander Abraham Abdo on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Abdo, Alexander) (Entered: 11/29/2010)
2010-12-20	16	ENDORSED LETTER addressed to Judge Richard J. Sullivan from Alexander A. Abdo and Jameel Jaffer, dated 12/17/2010, re: On November 29, 2010, Defendants completed their processing and production of responsive documents. Since that time, Plaintiffs have reviewed the production and conferred with Defendants regarding future proceedings. Plaintiffs will likely raise several challenges to Defendants' withholding of records; however, the parties continue to discuss the scope of those challenges, if any, in the hope of narrowing them. To allow those discussions to continue, the parties respectfully request until January 21, 2011 to submit a joint status report apprising the Court of the status of the parties' negotiations and the need for further litigation if any. Should further litigation be necessary, it will consist of cross-motions for summary judgment as to the propriety of Defendants' withholding of responsive records pursuant to the various exemptions of FOIA. See 5 U.S.C. § 552(b). ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 12/17/2010) (lnl) (Entered: 12/20/2010)
2010-12-22	17	MOTION for Melissa Goodman to Withdraw as Attorney. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Goodman, Melissa) (Entered: 12/22/2010)
2010-12-23	18	ORDER: Before the Court is Plaintiffs' counsel Melissa Goodman's motion to withdraw as counsel, as she is no longer working for the American Civil Liberties Union Foundation, which represents Plaintiffs in this case. Plaintiffs continue to be represented by the Foundation and another attorney from the Foundation has filed a notice of appearance. Accordingly, IT IS HEREBY ORDERED THAT the motion is granted. The Clerk of Court is respectfully directed to remove Ms. Goodman's appearance from the docket sheet and terminate the motion listed as Docket Number 17 . Attorney Melissa Goodman terminated. (Signed by Judge Richard J. Sullivan on 12/23/2010) (lnl) (Entered: 12/23/2010)
2011-01-21	19	ENDORSED LETTER: addressed to Judge Richard J. Sullivan from Benjamin H. Torrance dated 1/21/2011 re: Counsel for defendant request that the Court permit the parties to file an additional status report by February 11, 2011, in which the parties will either indicate their agreement to dismiss this action or propose a schedule for submission of cross-motions for summary judgment. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 1/21/11) (js) (Entered: 01/24/2011)
2011-01-25	20	NOTICE OF APPEARANCE by Louis Anthony Pellegrino on behalf of Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence (Pellegrino, Louis) (Entered: 01/25/2011)
2011-02-14	21	ENDORSED LETTER addressed to Judge Richard J. Sullivan from Alexander A. Abdo dated 2/11/2011 re: The parties respectfully request until 2/23/2011 to submit to the Court a proposed schedule to address Defendants' withholdings. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 2/14/2011) (ae) (Entered: 02/14/2011)
2011-02-23	22	ENDORSED LETTER addressed to Judge Richard J. Sullivan from Louis A. Pellegrino dated 2/23/2011 re: The parties hereby propose the following schedule: Government's draft Vaughn indexes and/or declarations to be submitted to Plaintiff by 4/25/2011; ACLU will move for summary judgment on outstanding issues due May 20, 2011; Government's opposition to ACLU's motion and cross-motion for summary judgment due June 17, 2011; ACLU's reply brief due July 1, 2011. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 2/23/2011) (jpo) (Entered: 02/23/2011)
2011-04-19	23	NOTICE OF APPEARANCE by Robert D. Balin on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Balin, Robert) (Entered: 04/19/2011)
2011-04-19	24	NOTICE OF APPEARANCE by Samuel Bayard on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (Bayard, Samuel) (Entered: 04/19/2011)
2011-04-27	25	MOTION for Bruce Johnson to Appear Pro Hac Vice. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(mbe) (Entered: 05/02/2011)
2011-04-27	26	MOTION for Jennifer Arterburn to Appear Pro Hac Vice. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(mbe) (Entered: 05/02/2011)
2011-05-02		CASHIERS OFFICE REMARK on 25 Motion to Appear Pro Hac Vice, 26 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 04/27/2011, Receipt Number 5192. (jd) (Entered: 05/02/2011)
2011-05-03	27	ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION, granting 25 Motion for Bruce Johnson to Appear Pro Hac Vice as counsel for Plaintiffs. (Signed by Judge Richard J. Sullivan on 5/3/2011) (lnl) (Entered: 05/03/2011)
2011-05-03	28	ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION, granting 26 Motion for Jennifer Arterburn to Appear Pro Hac Vice as counsel for Plaintiffs. (Signed by Judge Richard J. Sullivan on 5/3/2011) (lnl) (Entered: 05/03/2011)
2011-05-11	29	NOTICE OF APPEARANCE by Ronald Gary London on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation (London, Ronald) (Entered: 05/11/2011)
2011-05-16	30	STIPULATION AND ORDER ADJOURNING BRIEFING SCHEDULE: The date for Plaintiffs to file and serve their motion for summary judgment on outstanding issues, currently scheduled for May 20, 2011, shall be adjourned and extended to June 3, 2011. the date for Defendants to file and serve their papers in opposition to the Summary Judgment Motion and in support of any cross-motion for summary judgment, currently scheduled for June 17, 2011, shall be adjourned and extended to July 1, 2011. The date for Plaintiffs to file and serve their reply papers in further support of the Summary Judgment Motion and in opposition to any cross-motion for summary judgment currently scheduled for July 1, 2011, shall be adjourned to July 18, 2011. So Ordered (Signed by Judge Richard J. Sullivan on 5/16/2011) (js) (Entered: 05/17/2011)
2011-06-03	31	MOTION for Summary Judgment. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Balin, Robert) (Entered: 06/03/2011)
2011-06-03	32	MEMORANDUM OF LAW in Support re: 31 MOTION for Summary Judgment.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Balin, Robert) (Entered: 06/03/2011)
2011-06-03	33	RULE 56.1 STATEMENT. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Balin, Robert) (Entered: 06/03/2011)
2011-06-03	34	DECLARATION of Robert D. Balin in Support re: 31 MOTION for Summary Judgment.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit)(Balin, Robert) (Entered: 06/03/2011)
2011-07-01	35	CROSS MOTION for Summary Judgment. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. Responses due by 7/18/2011(Torrance, Benjamin) (Entered: 07/01/2011)
2011-07-01	36	FILING ERROR - DEFICIENT DOCKET ENTRY - MEMORANDUM OF LAW in Support re: 35 CROSS MOTION for Summary Judgment. and in opposition to 31 plaintiffs' motion for summary judgment . Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) Modified on 7/5/2011 (ldi). (Entered: 07/01/2011)
2011-07-01		***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Benjamin H. Torrance to RE-FILE Document 36 Memorandum of Law in Support of Motion. ERROR(S): No signature or s/. (ldi) (Entered: 07/05/2011)
2011-07-05	37	MEMORANDUM OF LAW in Support re: 35 CROSS MOTION for Summary Judgment. and in opposition to 31 plaintiffs' motion for summary judgment . Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 07/05/2011)
2011-07-18	38	MOTION to Strike or, In the Alternative, For Complete In Camera Review . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(London, Ronald) (Entered: 07/18/2011)
2011-07-18	39	MEMORANDUM OF LAW in Support re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review .. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (London, Ronald) (Entered: 07/18/2011)
2011-07-18	40	REPLY to Response to Motion re: 31 MOTION for Summary Judgment. and in opposition to 35, defendants' cross motion for summary judgment . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (London, Ronald) (Entered: 07/18/2011)
2011-08-01	41	ORDER, Set Deadline as to 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review . Response due by 8/8/2011, Reply due by 8/17/2011. (Signed by Judge Richard J. Sullivan on 8/1/11) (cd) (Entered: 08/01/2011)
2011-08-08	42	MEMORANDUM OF LAW in Opposition re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review .. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 08/08/2011)
2011-08-08	43	DECLARATION of Diane M. Janosek in Opposition re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review ., 31 MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 08/08/2011)
2011-08-17	44	REPLY to Response to Motion re: 38 MOTION to Strike or, In the Alternative, For Complete In Camera Review .. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (London, Ronald) (Entered: 08/17/2011)
2011-11-15	45	OPINION AND ORDER:#101028 For the reasons stated above, Plaintiffs' motion to strike is HEREBY DENIED; their motion in the alternative for in camera review is Granted in Part and Denied in Part. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 38. The cross motions for summary judgment, located at Doc. Nos. 31 and 35, will remain open pending the additional submissions set forth above. (Signed by Judge Richard J. Sullivan on 11/15/2011) (js) Modified on 11/21/2011 (jab). (Entered: 11/15/2011)
2011-11-28	46	ENDORSED LETTER addressed to Judge Richard J. Sullivan from Benjamin H. Torrance and Louis A. Pellegrino dated 11/23/2011 re: Counsel for the defendants requests until 1/18/2012, to provide their in camera responses. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 11/28/2011) (ft) (Entered: 11/28/2011)
2012-01-17	47	ENDORSED LETTER addressed to Judge Richard J. Sullivan from Benjamin H. Torrance and Louis A. Pellegrino dated 1/16/2012 re: Counsel for the Defendant writes to request that the in camera review due on 1/18/2012 be extended until 1/25/2012. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 1/17/2012) (ab) (Entered: 01/17/2012)
2012-01-25	48	DECLARATION of John F. Hackett in Support re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
2012-01-25	49	NOTICE of Classified Filing re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
2012-01-25	50	DECLARATION of David M. Hardy in Support re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
2012-01-25	51	DECLARATION of David M. Hardy (corrected declaration) in Support re: 35 CROSS MOTION for Summary Judgment.. Document filed by Department of Defense, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Torrance, Benjamin) (Entered: 01/25/2012)
2012-03-30	52	MEMORANDUM AND ORDER denying 31 Motion for Summary Judgment filed by American Civil Liberties Union, American Civil Liberties Union Foundation; granting 35 Motion for Summary Judgment filed by Defendants: Plaintiffs' motion for summary judgment is HEREBY DENIED, and Defendants' motion for summary judgment is HEREBY GRANTED. The Clerk of the Court is respectfully directed to terminate the motions located at Doc. Nos. 31 and 35 and close this case. (Signed by Judge Richard J. Sullivan on 3/30/2012) (ab) (Entered: 03/30/2012)
2012-03-30		Transmission to Judgments and Orders Clerk. Transmitted re: 52 Order on Motion for Summary Judgment to the Judgments and Orders Clerk. (ab) (Entered: 03/30/2012)
2012-03-30	53	CLERK'S JUDGMENT That for the reasons stated in the Court's Memorandum and Order dated March 30, 2012, Plaintiffs' motion for summary judgment is denied, and Defendants' motion for summary judgment is granted; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 3/30/12) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 03/30/2012)
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