Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the public availability of leaked State Department cables pertaining to Iraq on WikiLeaks does not waive the agency's ability to continue to withhold portions of the cables under Exemption 1 (national security) and Exemption 3 (other statutes). The law firm of Osen LLC submitted a FOIA request to the Department of State for six identified cables. Osen submitted a second FOIA request for 36 identified cables. The State Department located 40 of the 42 requested cables and released 11 in full and 29 with redactions. Osen filed suit, arguing that because the cables were publicly available on WikiLeaks, the agency had waived its ability to claim they were confidential. During the litigation, State re-released 15 documents, removing some of the prior redactions. Judge Jed Rakoff explained that under Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009), an official disclosure occurs only if it is as specific as the information previously released, matches the information previously disclosed, and was made through an official documented disclosure. Osen argued that State had officially acknowledged the disclosures on WikiLeaks in a 2010 press statement and in the 2011 Information Review Task Force Report issued by the Department of Defense. Finding that neither statement was specific enough to constitute an official disclosure, Rakoff pointed out that "the Wilson test is a difficult fit for Osen's argument, which is not that the government has officially disclosed the information in the cables, but that, by acknowledging that the unauthorized publication of government documents on WikiLeaks occurred, the government has converted all leaked document available on WikiLeaks into official disclosures." He added that "acknowledging the existence and scope of a leak does not have the same effect as officially disclosing leaked information. As long as the information itself has not been officially disclosed, the justification for the distinction between unofficially and officially disclosed information remains. Holding otherwise would be tantamount to forcing the government to make an official disclosure of any leaked information if it wanted to acknowledge and investigate the leak." Osen argued that other State and Defense Department documents provided some of the information. Rakoff observed that "while the Second Circuit has clarified that the 'matching requirement' does not 'require absolute identity' this does not imply that any overlap in information satisfies the matching requirement or that courts should not consider the specific nuances and contexts of the documents being compared." Osen also challenged the State Department's Exemption 1 claim that disclosure could harm national security, particularly in light of the public availability of the cables on WikiLeaks. However, Rakoff pointed out that "in this case, State's submissions clearly and plausibly outline why the harms it traces from official disclosure of the redacted information remains a risk despite any unofficial disclosures." Osen claimed that under Exemption 3 the agency was required to identify the sources and methods that would be harmed by disclosure. Rakoff disagreed, noting instead that "State is not required to explain further what 'sources or methods' are at issue, and the Court finds that the material falls within the relevant statutes."
Issues: Exemption 1 - Harm to national security, Exemption 3 - Statutory prohibition of disclosure, Public domain

Date Filed	Doc #	Docket Text
2018-07-03	1	FILING ERROR - DEFICIENT PLEADING - SIGNATURE ERROR - COMPLAINT against United States Department of State. (Filing Fee $ 400.00, Receipt Number 0208-15283940)Document filed by Osen LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Friedman, William) Modified on 7/5/2018 (pc). (Entered: 07/03/2018)
2018-07-03	2	CIVIL COVER SHEET filed. (Friedman, William) (Entered: 07/03/2018)
2018-07-03	3	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Osen LLC.(Friedman, William) (Entered: 07/03/2018)
2018-07-03	4	FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Dept. of State, re: 1 Complaint. Document filed by Osen LLC. (Friedman, William) Modified on 7/5/2018 (pc). (Entered: 07/03/2018)
2018-07-05		***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney William Adam Friedman to RE-FILE Document No. 1 Complaint. The filing is deficient for the following reason(s): the pleading was not signed by the attorney who filed it. Re-file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (pc) (Entered: 07/05/2018)
2018-07-05		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Jed S. Rakoff. 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: 07/05/2018)
2018-07-05		Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (pc) (Entered: 07/05/2018)
2018-07-05		Case Designated ECF. (pc) (Entered: 07/05/2018)
2018-07-05		***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney William Adam Friedman to RE-FILE Document No. 4 Request for Issuance of Summons,. The filing is deficient for the following reason(s): Party name on summons must exactly match what is listed on the caption title. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pc) (Entered: 07/05/2018)
2018-07-05	5	REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of State, re: 1 Complaint,. Document filed by Osen LLC. (Friedman, William) (Entered: 07/05/2018)
2018-07-05	6	NOTICE OF APPEARANCE by Michael Jacob Radine on behalf of Osen LLC. (Radine, Michael) (Entered: 07/05/2018)
2018-07-05	7	COMPLAINT against United States Department of State. Document filed by Osen LLC.(Radine, Michael) (Entered: 07/05/2018)
2018-07-13	8	ELECTRONIC SUMMONS ISSUED as to United States Department of State. (pne) (Entered: 07/13/2018)
2018-07-13	9	NOTICE OF COURT CONFERENCE: Initial Conference set for 7/30/2018 at 11:00 AM in Courtroom 14B, 500 Pearl Street, New York, NY 10007 before Judge Jed S. Rakoff, as further set forth in this order. (Signed by Judge Jed S. Rakoff on 7/13/2018) (jwh) (Entered: 07/13/2018)
2018-07-30		Minute Entry for proceedings held before Judge Jed S. Rakoff: Initial Pretrial Conference held on 7/30/2018. (Kotowski, Linda) (Entered: 07/30/2018)
2018-08-14		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 8/14/2018. (Kotowski, Linda) (Entered: 08/30/2018)
2018-08-16	10	ANSWER to 7 Complaint. Document filed by United States Department of State.(Tarczynska, Dominika) (Entered: 08/16/2018)
2018-09-06	11	NOTICE OF APPEARANCE by Peter Max Aronoff on behalf of United States Department of State. (Aronoff, Peter) (Entered: 09/06/2018)
2018-09-14	12	STATUS REPORT. Document filed by Osen LLC.(Radine, Michael) (Entered: 09/14/2018)
2018-09-14	13	TRANSCRIPT of Proceedings re: conference held on 7/30/2018 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Alena Lynch, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/5/2018. Redacted Transcript Deadline set for 10/15/2018. Release of Transcript Restriction set for 12/13/2018.(McGuirk, Kelly) (Entered: 09/14/2018)
2018-09-14	14	NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 7/30/18 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/14/2018)
2018-09-28		Minute Entry for proceedings held before Judge Jed S. Rakoff: Interim Pretrial Conference held on 9/28/2018. Government's Motion for Summary Judgment due 11-9-2018, Plaintff's cross motion and response to Govt's Motion due 11-20-2018, Govt's resp to pltff's cross motion due 12-3-2018 as is their reply to pltff's response to the Govt's MSJ, pltff's reply to the gov't's response to their cross motion due 12-10-2018. Argument will be heard on 12-17-2018 at 4:00pm. (Kotowski, Linda) (Entered: 09/28/2018)
2018-11-09	15	MOTION for Summary Judgment . Document filed by United States Department of State.(Aronoff, Peter) (Entered: 11/09/2018)
2018-11-09	16	MEMORANDUM OF LAW in Support re: 15 MOTION for Summary Judgment . . Document filed by United States Department of State. (Aronoff, Peter) (Entered: 11/09/2018)
2018-11-09	17	DECLARATION of Eric F. Stein in Support re: 15 MOTION for Summary Judgment .. Document filed by United States Department of State. (Aronoff, Peter) (Entered: 11/09/2018)
2018-11-20	18	CROSS MOTION for Summary Judgment . Document filed by Osen LLC. Responses due by 12/3/2018 Return Date set for 12/17/2018 at 04:00 PM.(Radine, Michael) (Entered: 11/20/2018)
2018-11-20	19	MEMORANDUM OF LAW in Support re: 18 CROSS MOTION for Summary Judgment . . Document filed by Osen LLC. (Radine, Michael) (Entered: 11/20/2018)
2018-11-20	20	DECLARATION of Michael J. Radine in Support re: 18 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40)(Radine, Michael) (Entered: 11/20/2018)
2018-11-27		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 11/27/2018. (Kotowski, Linda) (Entered: 12/04/2018)
2018-12-03	21	REPLY MEMORANDUM OF LAW in Support re: 15 MOTION for Summary Judgment . and memorandum of law in opposition to plaintiff's cross-motion . Document filed by United States Department of State. (Aronoff, Peter) (Entered: 12/03/2018)
2018-12-03	22	DECLARATION of Eric F. Stein in Support re: 15 MOTION for Summary Judgment .. Document filed by United States Department of State. (Aronoff, Peter) (Entered: 12/03/2018)
2018-12-10	23	REPLY MEMORANDUM OF LAW in Support re: 18 CROSS MOTION for Summary Judgment . . Document filed by Osen LLC. (Radine, Michael) (Entered: 12/10/2018)
2018-12-10	24	DECLARATION of Michael J. Radine in Support re: 18 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 29A)(Radine, Michael) (Entered: 12/10/2018)
2018-12-17		Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 12/17/2018 re: 15 MOTION for Summary Judgment . filed by United States Department of State, 18 CROSS MOTION for Summary Judgment . filed by Osen LLC. (Kotowski, Linda) (Entered: 12/19/2018)
2018-12-20	25	DECLARATION of Michael J. Radine in Support re: 18 CROSS MOTION for Summary Judgment .. Document filed by Osen LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 7, # 7 Exhibit 9, # 8 Exhibit 13, # 9 Exhibit 16, # 10 Exhibit 17, # 11 Exhibit 18, # 12 Exhibit 19, # 13 Exhibit 20, # 14 Exhibit 21, # 15 Exhibit 23)(Radine, Michael) (Entered: 12/20/2018)
2018-12-27	26	STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) SO ORDERED. (Signed by Judge Colleen McMahon on 12/27/2018) (ama) (Entered: 01/03/2019)
2018-12-27		Case Stayed (ama) (Entered: 01/14/2019)
2019-01-07	27	TRANSCRIPT of Proceedings re: confernece held on 12/17/2018 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Karen Gorlaski, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/28/2019. Redacted Transcript Deadline set for 2/7/2019. Release of Transcript Restriction set for 4/8/2019.(McGuirk, Kelly) (Entered: 01/07/2019)
2019-01-07	28	NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a confernece proceeding held on 12/17/18 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/07/2019)
2019-02-06	29	OPINION AND ORDER re: 15 MOTION for Summary Judgment filed by United States Department of State, 18 CROSS MOTION for Summary Judgment filed by Osen LLC. For the reasons stated above, the Court grants State's motion for summary judgment in full, and denies Osen's motion for summary judgment. The Clerk of the Court is directed to close all open docket entries and enter judgment. SO ORDERED. (Signed by Judge Jed S. Rakoff on 2/5/2019) (anc) Transmission to Orders and Judgments Clerk for processing. (Entered: 02/06/2019)
2019-02-07	30	CLERK'S JUDGMENT re: 29 Memorandum & Opinion in favor of United States Department of State against Osen LLC. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated February 6, 2019, the State's motion for summary judgment is granted in full, and Osen's motion for summary judgment is denied. (Signed by Clerk of Court Ruby Krajick on 2/7/2019) (Attachments: # 1 Right to Appeal)(km) (Entered: 02/07/2019)
2019-02-07		Terminate Transcript Deadlines (km) (Entered: 02/07/2019)
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