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ACLU’s request denied – although the Freedom of Information Act was to “ensure an informed citizenry

This case was brought to obtain documents relating to Section 215 of the Patriot Act. “Specifically, section 215 of the USA PATRIOT Act authorized judges of the Foreign Intelligence Surveillance Court (FISC) to order the ‘production of any tangible things (including books, records, papers, documents, and other items)’ if certain statutory requirements are met.” See Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified at 50 U.S.C. §1861). After the lawsuit’s initiation, there was a major security leak which made public, amongst other things, some of the very documentation sought by the ACLU’s FOIA request. During this time, the New York Times also sought a FOIA request. “In February 2014, the ACLU narrowed its request again to ‘fully withheld opinions or orders of the Foreign Intelligence Surveillance Court that relate to the bulk collection of any information (i.e., not just telephony metadata).’ The Government provided a Vaughn index containing eight entries purporting to list the documents responsive to the narrowed request that had been withheld in full.” Both sides moved for summary judgment.

Background: “In October 2011, the ACLU filed this action challenging the Government's response. The ACLU's FOIA request overlapped with a FOIA request by The New York Times that sought a report to Congress from the Attorney General and Director of National Intelligence concerning the use of section 215. See N.Y. Times Co. v. U.S. Dep't of Justice, 11 Civ. 6990 (WHP) (S.D.N.Y.). The ACLU, The New York Times, and the Government all moved for summary judgment with respect to that report. After reviewing the report in camera, this Court granted summary judgment for the Government. N.Y. Times Co. v. Dep't of Justice, 872 F. Supp. 2d 309 (S.D.N.Y. 2012).”

Freedom of Information Act: Congress enacted FOIA to "ensure an informed citizenry" and to "hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242(1978). FOIA requires "broad disclosure of Government records." CIA v. Sims, 471 U.S. 159, 166 (1985). It strikes "a workable balance between the right of the public to know and the need of the Government to keep information in confidence." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). On request, the Government must disclose any document that does not fall within one of FOIA's nine exemptions. See Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7 (2001). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Klamath, 532 U.S. at 7-8 (alteration in original) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). "[C]onsistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass" Klamath, 532 U.S. at 8 (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)); see also FBI v. Abramson, 456 U.S. 615, 630 (1982). Even if portions of documents are exempt from disclosure, the statute requires the Government to disclose "[a]ny reasonably segregable portion." 5 U.S.C. §552(b).

"[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (quoting Mead Data Central Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). "Before approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld." Sussman, 494 F.3d at 1116. "[T]o prevail on a motion for summary judgment in a FOIA case, the defendant agency has the burden of showing…that any withheld documents fall within an exemption to FOIA." Long v. Office of Personnel Mgmt., 692 F.3d 185, 190 (2d Cir. 2012) (quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)); see also Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009). "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Wilner, 592 F.3d at 73 (quoting Larson v. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Wilner, 592 F.3d at 73 (quoting Larson, 565 F.3d at 865).

The Court here elected to review the documents in Camera (out of the public’s eye) to determine whether such documents are exempt under FOIA. The government’s argument was, by and large, that these documents needed to remain classified for national security reasons. In the national security context, a court "must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." ACLU v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). The court evaluated the standard of law and then defers as to certain documents requested by the ACLU. Specifically, the Court stated that, “[b]ecause the executive is better equipped to determine potential harms to national security than the judiciary, it deserves considerable deference on that issue.” As to the remainder of documents, the Court found that exemptions to FOIA applied: "[A]n agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[] FOIA exception." Wilner, 592 F.3d at 68 (alterations in original) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). Therefore an agency may make a Glomar response when "the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA exemption." Wilner, 592 F.2d at 70.

What is the ACLU trying to find out here? It seems the ACLU wants to know who and why the government is listening and spying on certain people. The Court, acknowledging the importance of this, states that “if the Government is collecting other information in bulk, knowing that could permit a sophisticated adversary, together with disparate other pieces of information, to make an educated guess as to what the Government is doing. A sophisticated adversary could determine what types of information the intelligence community would likely be interested in collecting in bulk and what types of information could in fact be easily collected. Admitting the existence of other bulk collection programs could permit these adversaries to predict the Government's activities and evade them.” In short, to let the American people know who the government is watching and why, could allow a sophisticated party to evade government surveillance.

Conclusion: “the Government is entitled to summary judgment with respect to FISC orders, if any, relating solely to the bulk collection of information other than telephony metadata. But because this Court has little faith in the Government's segregability determinations, the other documents in the Government's Vaughn index must be submitted for in camera review…”

The case is American Civil Liberties Union v. Federal Bureau of Investigation, 11cv7562, NYLJ 1202673168618, at 1 (SDNY, Decided October 6, 2014)

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