Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the New York Times cannot challenge the FBI's release of data on Assessment Reports, which allow the agency to use authorized investigative techniques to gather information and intelligence on individuals and groups that may be involved in criminal activities or threats to national security, because the newspaper was now trying to get a different version of the data than what it had originally requested. Reporter Charlie Savage asked for the assessments and the agency withheld them, claiming Exemption 5 (privileges) as well as Exemption 1 (national security). But when the statistics were disclosed in a letter to the Senate Judiciary Committee, the agency told Savage that Exemption 5 was no longer applicable and gave him the materials sent to the Judiciary Committee. But once Savage had looked at the materials he realized that he needed more information. He asked the agency to further provide the data broken down by the types of investigations. The agency refused. The court noted that "the [newspaper's] Complaint does not make a claim that all assessment statistics be declared public. Plaintiffs' summary judgment motion nevertheless attempts to broaden their claims to all assessment statistics in an impermissible attempt to avoid mootness. Since the FBI's March 7, 2011 unredacted released of the Assessment Statistics provided to the Senate Judiciary Committee complied with Mr. Savage's FOIA Request in accordance with his later amended request, the NYT's November 4, 2009 FOIA request is now moot." The newspaper argued the case was not moot because the agency had shown a pattern and practice of improperly withholding the data under Exemption 2 (internal practices and procedures) and Exemption 7(E) (investigative methods and techniques). The court rejected that argument, pointing out that "defendant's initial withholding under Exemption 2 was not improper under circuit court case law at the time Exemption 2 was invoked. With regard to Exemption 7(E), the FBI released the request document after review by its subject matter experts revealed that the release of the assessment statistics requested by Mr. Savage would no longer harm a protected interest. Plaintiffs have failed to provide evidence of prior similar instances to support its claim that it is the policy or practice of the FBI to improperly withhold assessment statistics under Exemption 2 or Exemption 7(E)."
Issues: Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2010-10-18	1	COMPLAINT against Federal Bureau of Investigation. (Filing Fee $ 350.00, Receipt Number 917535)Document filed by The New York Times Company, Charles Savage.(mro) (mro). (Entered: 10/19/2010)
2010-10-18		SUMMONS ISSUED as to Federal Bureau of Investigation, U.S. Attorney and U.S. Attorney General. (mro) (Entered: 10/19/2010)
2010-10-18		Magistrate Judge Kevin Nathaniel Fox is so designated. (mro) (Entered: 10/19/2010)
2010-10-18		Case Designated ECF. (mro) (Entered: 10/19/2010)
2010-10-18	2	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Charles Savage, The New York Times Company.(mro) (mro). (Entered: 10/19/2010)
2010-11-02	3	CERTIFICATE OF SERVICE of Summons and Complaint. Federal Bureau of Investigation served on 10/19/2010, answer due 11/9/2010. Service was made by MAIL. Document filed by The New York Times Company; Charles Savage. (McCraw, David) (Entered: 11/02/2010)
2010-11-18	4	ENDORSED LETTER addressed to Judge Robert P. Patterson, Jr. from Amy Barcelo (unsigned) dated 11/17/10 re: I am writing on behalf of FBI, and with plaintiffs' consent, to request a four-week extension of time to respond to the complaint. With that extension the FBI's response to the complaint would be due on or before December 17, 2010. ENDORSEMENT: Application granted. So ordered. Federal Bureau of Investigation answer due 12/17/2010. (Signed by Judge Robert P. Patterson on 11/17/10) (rjm) (Entered: 11/18/2010)
2010-12-17	5	ENDORSED LETTER addressed to Judge Robert P. Patterson, Jr from Amy A. Barcelo dated 12/16/2010 re: Counsel request a second 4 week extension of time to respond to the complaint to 1/14/11. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge Robert P. Patterson on 12/17/2010) (jfe) (Entered: 12/17/2010)
2011-01-14	6	ANSWER to Complaint. Document filed by Federal Bureau of Investigation.(Barcelo, Amy) (Entered: 01/14/2011)
2011-01-21		Minute Entry for proceedings held before Judge Robert P. Patterson: Case Management Conference held on 1/21/2011, ( Motions due by 2/25/2011., Replies due by 4/15/2011., Responses due by 3/25/2011., Governments Responses due by 4/29/2011.). (mbe) (Entered: 01/25/2011)
2011-01-21	7	SCHEDULING ORDER: Dispositive Motions due by 2/25/2011. Answer deadline 3/25/11. Responses due by 4/15/2011. (Government) Replies due by 4/29/2011. (Signed by Judge Robert P. Patterson on 1/21/11) (db) (Entered: 01/26/2011)
2011-01-21		Set/Reset Deadlines: Federal Bureau of Investigation answer due 3/25/2011. (db) (Entered: 01/26/2011)
2011-02-25	8	MOTION for Summary Judgment. Document filed by Charles Savage, The New York Times Company. Responses due by 3/25/2011 Return Date set for 4/29/2011 at 09:30 AM.(McCraw, David) (Entered: 02/25/2011)
2011-02-25	9	MEMORANDUM OF LAW in Support re: 8 MOTION for Summary Judgment.. Document filed by Charles Savage, The New York Times Company. (McCraw, David) (Entered: 02/25/2011)
2011-02-25	10	DECLARATION of DAVID E. MCCRAW in Support re: 8 MOTION for Summary Judgment.. Document filed by Charles Savage, The New York Times Company. (Attachments: # 1 Exhibit Exhibits A-E, # 2 Exhibit Exhibit F (part 1), # 3 Exhibit Exhibit F (part 2), # 4 Exhibit Exhibits G-K)(McCraw, David) (Entered: 02/25/2011)
2011-03-15	11	NOTICE of Substitution of Attorney. Old Attorney: Amy Ann Barcelo, New Attorney: Tomoko Onozawa, Address: U.S. Attorney's Office - SDNY, 86 Chambers Street, Third Floor, New York, New York, 10007, (212) 637-2721. Document filed by Federal Bureau of Investigation. (Onozawa, Tomoko) (Entered: 03/15/2011)
2011-03-25	12	CROSS MOTION for Summary Judgment and Motion to Dismiss for Lack of Subject Matter Jurisdiction . Document filed by Federal Bureau of Investigation. Responses due by 4/15/2011(Onozawa, Tomoko) (Entered: 03/25/2011)
2011-03-25	13	MEMORANDUM OF LAW in Support re: 12 CROSS MOTION for Summary Judgment and Motion to Dismiss for Lack of Subject Matter Jurisdiction .. Document filed by Federal Bureau of Investigation. (Onozawa, Tomoko) (Entered: 03/25/2011)
2011-03-25	14	DECLARATION of David M. Hardy in Support re: 12 CROSS MOTION for Summary Judgment and Motion to Dismiss for Lack of Subject Matter Jurisdiction .. Document filed by Federal Bureau of Investigation. (Attachments: # 1 Exhibit A-Y)(Onozawa, Tomoko) (Entered: 03/25/2011)
2011-04-15	15	FILING ERROR - DEFICIENT DOCKET ENTRY - REPLY MEMORANDUM OF LAW in Support re: 8 MOTION for Summary Judgment. Document filed by Charles Savage, The New York Times Company. (McCraw, David) Modified on 4/18/2011 (ldi). (Entered: 04/15/2011)
2011-04-15	16	DECLARATION of David McCraw in Support re: 8 MOTION for Summary Judgment.. Document filed by Charles Savage, The New York Times Company. (McCraw, David) (Entered: 04/15/2011)
2011-04-15	17	DECLARATION of Charles Savage in Support re: 8 MOTION for Summary Judgment.. Document filed by Charles Savage, The New York Times Company. (Attachments: # 1 Exhibit A-B, # 2 Exhibit C, # 3 Exhibit D-E)(McCraw, David) (Entered: 04/15/2011)
2011-04-15		***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney David Edward McCraw to RE-FILE Document 15 Reply Memorandum of Law in Support of Motion. ERROR(S): document error. This document indicates it pertains to the Defendant (see document #13). (ldi) (Entered: 04/18/2011)
2011-04-18	18	REPLY MEMORANDUM OF LAW in Support re: 8 MOTION for Summary Judgment.. Document filed by Charles Savage, The New York Times Company. (McCraw, David) (Entered: 04/18/2011)
2011-04-29	19	REPLY MEMORANDUM OF LAW in Support re: 12 CROSS MOTION for Summary Judgment and Motion to Dismiss for Lack of Subject Matter Jurisdiction . and in opposition to Plaintiffs' Motion for Summary Judgment . Document filed by Federal Bureau of Investigation. (Onozawa, Tomoko) (Entered: 04/29/2011)
2011-04-29	20	DECLARATION of Dennis J. Argall in Support re: 12 CROSS MOTION for Summary Judgment and Motion to Dismiss for Lack of Subject Matter Jurisdiction .. Document filed by Federal Bureau of Investigation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Onozawa, Tomoko) (Entered: 04/29/2011)
2011-05-23	21	STIPULATION AND ORDER OF VOLUNTARY PARTIAL DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(2): THEREFORE, the parties agree and stipulate as follows: Count II of the Complaint shall be dismissed with prejudice pursuant to Fed. R. Civ, P. 41(a). (Signed by Judge Robert P. Patterson on 5/22/2011) (jfe) (Entered: 05/23/2011)
2011-08-19	22	SCHEDULING ORDER: Oral Argument set for 9/1/2011 at 09:30 AM before Judge Robert P. Patterson. (Signed by Judge Robert P. Patterson on 8/19/2011) Copies Faxed By Chambers. (lmb) (Entered: 08/19/2011)
2011-09-01		Minute Entry for proceedings held before Judge Robert P. Patterson: Motion Hearing held on 9/1/2011 re: 8 MOTION for Summary Judgment filed by The New York Times Company, Charles Savage. (ft) (Entered: 09/09/2011)
2011-11-08	23	OPINION AND ORDER. Plaintiffs' motion for summary judgment is denied, and Defendant's motion to dismiss for lack of subject matter jurisdiction is granted. (Signed by Judge Robert P. Patterson on 11/7/2011) Copies Sent By Chambers. (rjm) (Entered: 11/08/2011)
2011-11-08		Transmission to Judgments and Orders Clerk. Transmitted re: 23 Memorandum & Opinion to the Judgments and Orders Clerk. (rjm) (Entered: 11/08/2011)
2011-11-08	24	CLERK'S JUDGMENT That for the reasons stated in the Court's Opinion and Order dated November 7, 2011, plaintiffs motion for summary judgment is denied, and defendants motion to dismiss for lack of subject matter jurisdiction is granted. (Signed by Clerk of Court Ruby Krajick on 11/8/11) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 11/08/2011)
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