The New York Times Company et al v. United States Department of Justice
OPINION AND ORDER: For the foregoing reasons, DOJ's motion for partial summary judgment is granted in part and denied in part; and the Times's cross-motion for partial summary judgment is granted in part and denied in part. The Government i s hereby ordered to make public the challenged documents, with appropriate redactions, within 20 days of this order, pursuant to 5 U.S.C. § 552. The parties are directed to submit five-page letter motions on whether the Court should assess reaso nable attorney fees and costs against the United States within 30 days of this order, pursuant to 5 U.S.C. § 552(a)(4)(E). The Clerk of Court is directed to close the motions at Docket Numbers 40 and 48. Motions terminated: 40 SECOND MOTIO N for Summary Judgment , filed by United States Department of Justice, 48 CROSS MOTION for Summary Judgment (Partial). filed by The New York Times Company, Charlie Savage. (Signed by Judge J. Paul Oetken on 2/21/2017) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY and
OPINION AND ORDER
THE UNITED STATES DEPARTMENT OF
J. PAUL OETKEN, District Judge:
Plaintiffs Charlie Savage and the New York Times Company (collectively “the Times”)
filed this action against Defendant the United States Department of Justice (“DOJ” or “the
Government”) under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). The Times
seeks disclosure of five memoranda related to DOJ’s investigation into whether certain overseas
interrogations by the Central Intelligence Agency (“CIA”) and the deaths of detainees in CIA
custody violated federal law. On September 30, 2015, this Court upheld the withholding of all
but the five memoranda at issue in this case. (Dkt. No. 33 (“September Order”), at 17-22.) The
parties have cross-moved for partial summary judgment on the question whether the requested
memoranda are exempt from disclosure under FOIA Exemptions 1, 3, 5, 6, and 7(C). For the
reasons that follow, the parties’ cross-motions are granted in part and denied in part.
Familiarity with the underlying facts and procedural history, as described in the Court’s
September Order, is presumed. (See Dkt. No. 33.)
The five memoranda at issue were prepared by John Durham. (See Dkt. No. 49 at 5-6.)
In August 2009, Mr. Durham, then an Assistant United States Attorney in Connecticut, was
appointed by Attorney General Eric Holder to lead an investigation into whether federal laws had
been violated in connection with the interrogation of certain detainees by the CIA at overseas
locations. (Dkt. No. 43 (“Durham Decl.”) ¶¶ 5-6.) Mr. Durham primarily investigated the
legality of the interrogation techniques used by CIA interrogators in 101 detainee cases and
produced a final report on May 26, 2011 (“the Preliminary Review Memorandum”). (See id. ¶ 7;
Dkt. No. 44 at 3.) The Preliminary Review Memorandum concluded that, with the exception of
two cases involving individuals who died while in custody, no criminal investigations should be
pursued. (Durham Decl. ¶ 7.)
Mr. Durham prepared two additional reports on the two remaining cases (“the
Recommendation Memoranda”), which were submitted on December 14, 2010, and May 26,
2011. (Id. ¶ 8.) These cases involved two detainees who died while in the custody of the United
States in overseas detention centers. (Id.) The Recommendation Memoranda informed the
Attorney General that, under the governing standards, full criminal investigations were
warranted and recommended a strategy for the investigation, including the targets of the
investigation, the witnesses to interview, and the evidence to develop. (Id.) The
Recommendation Memoranda also contained eleven exhibits, which are “a collection of
historical, procedural, factual and evidentiary records,” including “emails, letters, legal
memoranda, reports, and depositions.” (Dkt. No. 42 (“Butler Decl.”) ¶ 13.) On June 30, 2011,
the Attorney General accepted recommendations contained in the Preliminary Review
Memorandum and the Recommendation Memoranda and announced his intention to open two
full criminal investigations, closing the remaining matters. (Durham Decl. ¶ 9.)
What followed were two full criminal investigations involving grand jury proceedings,
including the issuance of grand jury subpoenas. (Id. ¶ 10.) However, no indictments were issued
as a result of the investigations. (Id.) On March 14, 2012, and July 11, 2012, Mr. Durham
submitted two reports to the Attorney General and Deputy Attorney General, each explaining his
conclusion that the criminal investigations into the deaths of the two detainees should be closed
without further action (“the Declination Memoranda”). (Id.) On August 30, 2012, the Attorney
General announced the closing of the two investigations. (Id.)
With respect to the five memoranda at issue, this Court previously concluded that the
Attorney General’s reliance—both in the June 2011 press release and the August 2012
statement—on the reasoning in the documents to justify his actions triggered the express
adoption doctrine, thereby exempting them from protection under FOIA Exemption Five. (See
Dkt. No. 33 at 17-22.) Therefore, in its September Order, the Court denied DOJ’s motion for
partial summary judgment as to those memoranda and granted the Times’ motion. (Id.)
In the September Order, however, the Court also “acknowledge[d] that the application of
the express adoption doctrine to Durham’s memoranda in this case presents challenging
questions.” (Id. at 20.) It noted that it may well be the case that “DOJ should not be required to
disclose those portions of the memorandum that do not support the reasoning on which the
Attorney General publicly relied,” and invited the parties to move for partial summary judgment
on whether the memoranda must be disclosed in their entirety or only partially, and whether
other FOIA exemptions preclude disclosure of these memoranda. (Id. at 20-22.)
DOJ moves for partial summary judgment, asserting the documents were properly
withheld in whole or in part under FOIA Exemptions 1, 3, 5, 6, and 7(C). The Times crossmoves for summary judgment that the memoranda should be made public, with limited
The parties dispute both the application and scope of the exemptions. The Court first
describes the proper legal standard for FOIA cases on summary judgment before turning to each
of the exemptions claimed by DOJ and their application to the five memoranda at issue.
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As with
the previous round of summary judgment motions, “[b]oth parties move for summary judgment
and neither party disputes the facts, so the question is which party prevails as a matter of law
with respect to each set of documents.” (Dkt. No. 33 at 6.)
FOIA cases are typically resolved on summary judgment. See Adamowicz v. IRS, 552 F.
Supp. 2d 355, 360 (S.D.N.Y. 2008) (citing Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d
Cir. 1994)). This Court reviews de novo DOJ’s decision to withhold information. See 5 U.S.C.
§ 552(a)(4)(B). To prevail, “the defending agency has the burden of showing . . . that any
withheld documents fall within an exemption to the FOIA.” Carney, 19 F.3d at 812; see 5
U.S.C. § 552(a)(4)(B). The agency may satisfy this burden through “[a]ffidavits or
declarations . . . giving reasonably detailed explanations why any withheld documents fall within
an exemption.” Carney, 19 F.3d at 812. These affidavits and declarations are “accorded a
presumption of good faith.” Id. (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991)) (internal quotation marks omitted). As such, where the agency’s submissions
are “adequate on their face,” district courts “may ‘forgo discovery and award summary judgment
on the basis of affidavits.’” Id. (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
However, “disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air
Force v. Rose, 425 U.S. 352, 361 (1976). Exemptions to disclosure are, therefore, afforded a
“narrow compass,” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989), in light of
the underlying purpose of FOIA, which “was enacted to facilitate public access to Government
documents” and “was designed to ‘pierce the veil of administrative secrecy and open agency
action to the light of public scrutiny,’” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)
(quoting Rose, 425 U.S. at 361). Indeed, FOIA is intended to “promote honest and open
government and to assure the existence of an informed citizenry ‘to hold the governors
accountable to the governed.’” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir.
1999) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th Cir. 1994)).
DOJ argues that the memoranda at issue are exempt from disclosure, in whole or in part,
under Exemptions 1, 3, 5, 6, and 7(C). First, the Court addresses whether DOJ has met its
burden of demonstrating that four of the memoranda―the Recommendation and Declination
Memoranda―were properly withheld in full under Exemption 3 on the basis that their disclosure
would reveal matters occurring before the grand jury, pursuant to Federal Rule of Criminal
Procedure 6(e). After concluding that the requirement of grand jury secrecy justifies the
withholding of the Declination Memoranda only, the Court turns to the alternative bases
presented by DOJ for withholding portions of the remaining three memoranda, including
exemptions based on national security, privacy interests, and the scope of the express adoption
Exemption 3 – Documents Withheld Pursuant to Federal Rule of Criminal
The Court begins with Exemption 3, upon which the Government relies as a justification
to withhold four of the five memoranda—the Recommendation and Declination Memoranda.
(See Dkt. No. 44 at 8-11.)
Exemption 3 allows an agency to properly withhold records that are “specifically
exempted from disclosure by [another] statute” if the relevant statute either “requires that the
matters be withheld from the public in such a manner as to leave no discretion on the issue” or
“establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3)(A)(i)-(ii). To meet its burden under Exemption 3, DOJ must
demonstrate that the claimed statute is an exemption statute under FOIA and that the withheld
material falls within its scope. See CIA v. Sims, 471 U.S. 159, 167 (1985).
Here, the Government relies on Federal Rule of Criminal Procedure 6(e) as the statute
justifying its withholding of the four memoranda at issue. Rule 6(e) requires that all “matter[s]
occurring before the grand jury” remain secret, with few exceptions that are not relevant to the
present case. Rule 6(e) is treated as a statute for purposes of Exemption 3 “because the Congress
has enacted it into positive law.” Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 206
(D.C. Cir. 2015); see Local 32B–32J, Serv. Emps. Int’l Union, AFL–CIO v. GSA, 1998 WL
726000, at *6 (S.D.N.Y. October 15, 1998) (“It is well established that [Fed. R. Crim. P. 6(e)],
which imposes a general requirement of secrecy for information relating to the grand jury
process, qualifies as an Exemption 3 withholding statute.”).
The purpose of grand jury secrecy, as enshrined in Rule 6(e), is to ensure the proper
functioning of the grand jury system. The Supreme Court has articulated a number of interests
served by this secrecy:
First, if preindictment proceedings were made public, many
prospective witnesses would be hesitant to come forward
voluntarily, knowing that those against whom they testify would be
aware of that testimony. Moreover, witnesses who appeared before
the grand jury would be less likely to testify fully and frankly, as
they would be open to retribution as well as to inducements. There
also would be the risk that those about to be indicted would flee, or
would try to influence individual grand jurors to vote against
indictment. Finally, by preserving the secrecy of the proceedings,
we assure that persons who are accused but exonerated by the grand
jury will not be held up to public ridicule.
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979); see also In re Grand Jury
Subpoena, 72 F.3d 271, 274 (2d Cir. 1995) (quoting same).
Rule 6(e) does not expressly define what constitutes a “matter occurring before the grand
jury,” but, “[a]t its core, Rule 6(e)(2) protects from disclosure evidence that is actually presented
to the grand jury.” United States v. Skelos, No. 15 Crim. 317, 2015 WL 6159326, at *9
(S.D.N.Y. Oct. 20, 2015). Rule 6(e) protection extends beyond the literal evidence presented
directly to the grand jury, covering “anything that may tend to reveal what transpired before it”;
however, it does not necessarily cover “information obtained independently of a grand jury
investigation.” United States v. Eastern Air Lines, Inc., 923 F.2d 241, 244 (2d Cir. 1991). Rule
6(e)’s grand jury shield has thus been held to protect “the identities of witnesses or jurors, the
substance of testimony, the strategy or direction of the investigation, the deliberations or
questions of jurors, and the like.” Sec. and Exch. Comm’n v. Dresser Indus., 628 F.2d 1368,
1382 (D.C. Cir. 1980) (en banc); see also Skelos, 2015 WL 6159326, at *10 (detailing a similar
list of protected categories). “The pertinent question . . . is whether a particular proceeding is
related to or affects a grand jury proceeding.” In re Grand Jury Subpoena, 103 F.3d 234, 237
(2d Cir. 1996).
The parties disagree about the scope of grand jury secrecy. DOJ argues for a broad
application of Rule 6(e), citing D.C. Circuit case law holding that “[t]he scope of [grand jury]
secrecy is necessarily broad.” (Dkt. No. 44 at 9 (second alteration in original) (quoting Fund for
Const. Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir. 1981) (internal
quotation mark omitted)).) DOJ argues that Exemption 3 applies where “the disclosed material
would tend to reveal some secret aspect of the grand jury’s investigation,” where such a
“tendency need only make a result more likely.” (Id. (quoting Murphy, 789 F.3d at 209-10).)
investigation that parallels but is independent of a grand jury investigation . . . is not a violation
of grand jury secrecy because it is not a matter occurring before the grand jury.” In re Grand
Jury Subpoena, 103 F.3d at 238; see also Eastern Air Lines, 923 F.2d at 244; Blalock v. United
States, 844 F.2d 1546, 1551 (11th Cir. 1988) (per curiam) (holding that the grand jury secrecy
rule “does not protect from disclosure information obtained from a source other than the grand
jury, even if the same information is later presented to the grand jury”); In re Grand Jury
Investigation (Lance), 610 F.2d 202, 217 (5th Cir. 1980) (“[T]he disclosure of information
obtained from a source independent of the grand jury proceedings, such as a prior government
investigation, does not violate Rule 6(e).”). Simply put, courts consistently interpret Rule 6(e) as
inapplicable to “disclosures of information obtained independently of the grand jury process,
even if the same information might later be presented to the grand jury.” Skelos, 2015 WL
6159326, at *10. Rule 6(e) is not violated, therefore, by the disclosure of the Recommendation
Memoranda, which contain information gathered from an independent investigation. 1
DOJ’s reliance on Jimenez v. FBI, 938 F. Supp. 21 (D.D.C. 1996), and Linn v. U.S. Dep’t
of Justice, No. 92 Civ. 1406, 1995 WL 631847 (D.D.C. Aug. 22, 1995), is unavailing. (See Dkt.
No. 44 at 11.) In Jimenez, the court held that notes prepared “by an Assistant United States
And while Mr. Durham testifies that the disclosure of the Recommendation
Memoranda would tend to reveal the identities of the individuals whose deaths are the subject of
the investigation (Durham Decl. ¶ 12), DOJ cites no case, and this Court is aware of none, that
places previously undisclosed identities of decedents, whose deaths are the subject of a grand
jury proceeding, within the scope of Rule 6(e). Such a broad read of Rule 6(e), moreover, would
not serve the purposes of grand jury secrecy, which are aimed at ensuring the proper function of
the grand jury system. See Douglas Oil Co., 441 U.S. at 219. That is, the fact that the names of
the decedents have not been released by the Government does not somehow insulate them from
disclosure under FOIA. “[A] test that permits an agency to deny disclosure because the agency
thinks it best to do so (or convinces a court to think so, by logic or deference) would undermine
‘the basic policy that disclosure, not secrecy, is the dominant objective of [FOIA].’” Bloomberg,
L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 151 (2d Cir. 2010) (quoting
Rose, 425 U.S. at 361).
The reports include extensive analyses of the substantial volume of
evidence gathered during the grand jury’s investigations, including
quotations from and summaries of the testimony of witnesses who
appeared before the grand jury, as well as discussion of
documentary evidence obtained through grand jury subpoenas. The
reports include details regarding the inner workings of the grand
jury, including the contents of discussions with grand jurors, the
number of days the grand jurors heard testimony, the period of time
that the grand jury was convened, and work conducted by grand
jurors. In addition, the reports analyzed the . . . applicability of
criminal statutes that could potentially form the basis of an
indictment, and evaluated whether there was sufficient evidence to
bring such criminal charges against suspected wrongdoers.
(Id.) The Declination Memoranda clearly and unambiguously contain significant “matter
occurring before the grand jury,” as contemplated by Rule 6(e) and understood through the case
law discussed above. See Skelos, 2015 WL 6159326, at *10.
However, this does not warrant withholding of the Declination Memoranda in their
entirety. Mr. Durham’s affidavit, for example, notes that the Declination Memoranda disclose
the dates the grand jury served and the number of times it sat, but the Government does not make
a legal case for why Rule 6(e) covers such administrative information. (See Dkt. No. 49 at 17
n.18.) Moreover, Mr. Durham’s affidavit fails to indicate whether the Declination Memoranda
include additional information outside of matters before the grand jury, such as matters relating
solely to Mr. Durham’s independent investigation. For example, an analysis of the “applicability
of criminal statutes that could potentially form the basis of an indictment” and an evaluation of
“whether there was sufficient evidence to bring such criminal charges against suspected
wrongdoers” (Durham Decl. ¶ 11), may or may not be couched in a discussion of matters
occurring before the grand jury. For the reasons discussed in relation to the Recommendation
Memoranda, such information is not properly withheld pursuant to Rule 6(e) if it is related to an
independent investigation conducted by Mr. Durham and not concerning matters occurring
before the grand jury.
Here, the DOJ identifies certain information that occurred before the grand jury that the
Court agrees falls within the claimed exemption. The DOJ may withhold the identity of
witnesses who testified before the grand jury; the details and analysis of the evidence presented
to the grand jury, including quotations from and summaries of witness testimony; the discussion
of the scope and focus of the criminal investigations that occurred before the grand jury; the
targets of the grand jury proceedings; and the conclusions reached as a result of those
investigations. (See Dkt. No. 44 at 10 (citing Durham Decl. ¶ 11).) See Fund for Constitutional
Gov’t, 656 F.2d at 869 (affirming the withholding of information “naming or identifying grand
jury witnesses; quoting or summarizing grand jury testimony; evaluating testimony; discussing
the scope, focus and direction of the grand jury investigations; and identifying documents
considered by the grand jury and conclusions reached as a result of the grand jury investigations”
under Rule 6(e)’s “broad reach”); In re Grand Jury Subpoena, 103 F.3d at 239 (holding that the
names of witnesses and targets of grand jury investigations are protected under Rule 6(e)).
The Court, therefore, grants summary judgment to DOJ in part as to the withholding of
the Declination Memoranda under Rule 6(e), applied through FOIA Exemption 3.
Exemptions 1 and 3 – National Security
The Court next turns to whether DOJ properly withheld disclosure of portions of the five
memoranda pursuant to either Exemption 1, which allows the withholding of properly classified
information, or Exemption 3, as it incorporates the secrecy provisions of the CIA Act, 50 U.S.C.
§ 3507, and the National Security Act, 50 U.S.C. § 3024(i)(1).
The CIA, through the affidavit testimony of Jan Payne, Information Review Officer for
the Director’s Area, has invoked FOIA Exemptions 1 and 3 to protect six categories of
information contained in the memoranda in this case: (1) information regarding human
intelligence sources; (2) details concerning foreign liaison services; (3) the identities of covert
personnel; (4) the locations of covert CIA installations and former detention centers located
abroad; (5) descriptions of specific intelligence methods and tradecraft that are still in
operational use; and (6) classification and dissemination control markings. (See Dkt. No. 44 at
12 (citing Dkt. No. 41 (“Payne Decl.”) ¶¶ 8, 15-20).) The Times does not challenge the
withholding of information under categories (1), 2 (3), or (6). (See Dkt. No. 49 at 18.) As such,
the Court grants summary judgment to the Government as to the withholding of information
under those three categories and focuses its analysis on the treatment of the three disputed
categories under Exemptions 1 and 3.
The Court first turns to Exemption 1, which applies to records that are “(A) specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1).
The Government’s burden under Exemption 1 “is a light one.” N.Y. Times Co. v. U.S.
Dep’t of Justice, 872 F. Supp. 2d 309, 315 (S.D.N.Y. 2012) (quoting Am. Civil Liberties Union v.
U.S. Dep’t of Def., 628 F.3d 612, 624 (D.C. Cir. 2011) (internal quotation mark omitted)); see
Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007) (“[L]ittle proof or explanation is required
beyond a plausible assertion that information is properly classified”). Indeed, the Times
concedes that “the courts are to accord ‘substantial deference’ to agency affidavits pertaining to
national security.” (Dkt. No. 49 at 20 (quoting Associated Press v. U.S. Dep’t of Def., 498 F.
Supp. 2d 707, 710 (S.D.N.Y. 2007)).) See also Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 76 (2d
Cir. 2009) (“[I]t is bad law and bad policy to ‘second-guess the predictive judgments made by
While the Government describes “information” regarding human intelligence
sources, the Times consents only to withholding of “the identities of confidential human
intelligence sources.” (Dkt. No. 49 at 18 n.19.)
the government’s intelligence agencies’” regarding whether disclosure of information “would
pose a threat to national security” (quoting Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir.
But “deference is not equivalent to acquiescence.” Campbell v. U.S. Dep’t of Justice,
164 F.3d 20, 30 (D.C. Cir. 1998). In reviewing an Exemption 1 withholding claim, a court does
not “relinquish [its] independent responsibility” to engage in de novo review of the agency’s
determinations. Goldberg v. U.S. Dep’t of State, 818 F.2d 71, 77 (D.C. Cir. 1987). Accordingly,
under Exemption 1, DOJ is “is entitled to summary judgment 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 nor by evidence of agency bad faith.’” Associated Press v. U.S. Dep’t of
Def., 462 F. Supp. 2d 573, 576 (S.D.N.Y. 2006) (quoting Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981)).
The current standard for classification of sensitive information by the Government is set
forth in Executive Order Number 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010). 3 “[T]he determinative
consideration under Exemption 1” is whether the sensitive or classified information sought to be
Section 1.1 of the Executive Order lists four required criteria for the classification
of national security information: (1) an “original classification authority” must classify the
information; (2) the information must be “owned by, produced by or for, or [be] under the
control of the United States Government”; (3) the information must fall within one or more of
the eight protected categories of information listed in section 1.4 of the Executive Order; and (4)
the original classification authority must “determine that the unauthorized disclosure of the
information reasonably could be expected to result in damage to the national security” and be
“able to identify or describe the damage.” Exec. Order No. 13,526 § 1.1(a)(1)-(4). However,
“[i]f there is significant doubt about the need to classify information, it shall not be classified.”
Id. § 1.1(b). The Executive Order also prohibits classification of information when the
underlying purpose is to: “(1) conceal violations of law, inefficiency, or administrative error; (2)
prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4)
prevent or delay the release of information that does not require protection in the interest of the
national security.” Id. § 1.7.
withheld by the government “reasonably could be expected to result in damage to the national
security.” Florez v. CIA, 829 F.3d 178, 185 n.6 (2d Cir. 2016) (quoting Exec. Order No. 13,526,
75 Fed. Reg. at 707) (internal quotation marks omitted).
The Times argues that, against this backdrop, DOJ has failed to meet its burden to
demonstrate, “with reasonably specific detail,” that the withheld information “logically falls”
within Exemption 1. Associated Press, 462 F. Supp. 2d at 576. (See Dkt. No. 49 at 21-23.) It
focuses on the lack of detail contained in the affidavits, arguing that the Government provides
mere “boilerplate” language and “generalities,” to which the Court should not defer. (Dkt. No.
52 at 7-9.)
The Court reviews de novo the agency’s determination that Exemption 1 applies.
Goldberg, 818 F.2d at 76-77. The Court discusses, in turn, each of the three categories of
information withheld by DOJ and challenged by the Times: details concerning foreign liaison
services; the locations of covert CIA installations and former detention centers located abroad;
and descriptions of specific intelligence methods and tradecraft that are still in operational use.
First, Ms. Payne testifies that the memoranda contain, among other things, “details about
foreign liaison services,” the disclosure of which “would reveal intelligence sought by the
Agency and the means by which it is acquired,” causing “harm, and in some instances
exceptionally grave damage, to the CIA’s continued ability to collect this information and to the
Agency’s relationships with foreign partners.” (Payne Decl. ¶ 8.) In particular, she affirms that
the memoranda “contain foreign liaison and government information,” and that disclosure of the
information in the memoranda would interrupt the “flow of that information” to the CIA from
foreign liaison services and foreign government officials. (Id. ¶ 10.) Disclosure of certain
“details could damage the relations with the entities mentioned in the reports and with other
foreign partners working with the Agency, in turn, harming intelligence sharing and cooperation
on other areas of importance to the national security.” (Id.)
Given the context of the memoranda—which relate to DOJ’s investigation into whether
federal laws were violated in connection with the interrogation of certain detainees at overseas
locations—the Payne Declaration provides reasonably specific support for DOJ’s argument that
certain details regarding foreign liaison and government information contained in the
memoranda could, if disclosed, do harm to the Government’s relationships with the entities
mentioned. In Unrow Human Rights Impact Litig. Clinic v. U.S. Dep't of State, 134 F. Supp. 3d
263 (D.D.C. 2015), the District of Columbia district court found a similarly worded affidavit
sufficiently detailed to satisfy the Government’s burden. That affidavit declared that “‘[t]he
ability to obtain information from foreign governments is essential to the formulation and
successful implementation of U.S. foreign policy,’” and further noted that the “‘[r]elease of
foreign government information provided in confidence to the U.S. Government,’ . . . ‘would
cause . . . [f]oreign governments . . . to be less willing in the future to furnish information
important to the conduct of U.S. foreign relations, and . . . less disposed to cooperate with the
United States in the achievement of foreign policy objectives[.]’” Id. at 274. Here, the Court
grants “substantial deference” to Ms. Payne’s affidavit, as it “implicate[s] national security,”
Associated Press, 498 F. Supp. 2d at 710 (quoting Lawyers Comm. for Human Rights v. INS, 721
F. Supp. 552, 561 (S.D.N.Y. 1989)), and the Times does not challenge “the truthfulness or
sincerity of the declarants” (Dkt. No. 52 at 9). Assessing the record “on the whole,” as this Court
is required to do, DOJ’s withholding of “the content of . . . communications” between the United
States and foreign liaison services and foreign government officials, “as well as the mere fact of
the existence” of the Government’s relationships with them (Payne Decl. ¶ 10), “objectively
survives the test of reasonableness, good faith, specificity, and plausibility.” Florez, 829 F.3d at
185 n.6 (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)); see also Exec. Order
No. 13,526 §11.1(d), 75 Fed. Reg. at 707 (“The unauthorized disclosure of foreign government
information is presumed to cause damage to the national security.”).
Second, Ms. Payne affirms that the memoranda “contain details regarding the locations of
covert CIA installations and former detention centers located abroad.” (Payne Decl. ¶ 12.) The
Times points out that the locations of at least some CIA operated sites appear to be no secret at
all, and questions the extent of the redactions in light of unofficial disclosures of those locations.
(See Dkt. No. 49 at 22-23 (citing news articles identifying countries with CIA sites).)
But the Government has never officially acknowledged the locations of the CIA’s covert
facilities and installations (see Dkt. No. 51 at 17), and the Times’ reliance on the alleged
disclosure of such information by others does not function as official acknowledgement by the
Government for purposes of waiver under the FOIA exemptions. Wilson v. CIA, 586 F.3d 171,
186 (2d Cir. 2009) (discussing the “strict test” for official disclosure in the Exemption 1 context
and emphasizing the “critical difference between official and unofficial disclosure” (quoting
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)); see also N.Y. Times v. U.S. Dep’t of
Justice, 756 F.3d 100, 120 n.19 (2d Cir. 2014) (recognizing that Wilson “remains the law of this
Circuit” though noting that “a rigid application of it may not be warranted”). Accordingly,
DOJ’s request to withhold the locations of covert CIA installations and former detention centers
located abroad is appropriate under the relevant standard.
Third, the Payne Declaration discusses the need to withhold information regarding
specific intelligence methods and tradecraft that are still in operational use by the CIA. (Payne
Decl. ¶¶ 13-15.) It emphasizes that disclosure of “methods and activities” used “in connection
with current counterterrorism operations” would compromise national security by “provid[ing]
adversaries valuable insight into CIA operations that would damage their effectiveness.” (Id.
¶ 15.) The Times argues that, while this “general proposition is unassailable,” the Government
simply fails to apply it to the facts of the memoranda at issue in a manner that would facilitate
meaningful judicial review. 4 (Dkt. No. 49 at 23.) But Ms. Payne affirms that revealing CIA
intelligence methods and tradecraft would enable an adversary to better understand the “breadth,
capabilities, and limitations” of the agency’s methods, helping the adversary undermine CIA
methods. (Payne Decl. ¶ 15). She specifically identifies “dates and expenditures” as specific,
protected intelligence information contained in the memoranda. (Id. ¶ 14.) Moreover, “the
practice of intelligence gathering and Agency tradecraft” reflected in the documents “continue to
be used in connection with counterterrorism operations.” (Id. ¶ 15.) Considering the record “on
the whole,” Florez, 829 F.3d at 185 n.6 (quoting Gardels, 689 F.2d at 1105), the Government
has shown with sufficient specificity and plausibility that the disclosure of details concerning
intelligence gathering practices and CIA tradecraft that are still in use would undermine the
usefulness of those methods, to the detriment of national security. The Government has,
therefore, carried its burden under FOIA Exemption 1.
The Court concludes that DOJ’s “affidavits describe the justifications for nondisclosure
with reasonably specific detail, [and] demonstrate that the information withheld logically falls
within the claimed exemption.” Wilner, 592 F.3d at 73 (quoting Larson, 565 F.3d at 862).
Moreover, the Times does not argue that the affidavits are “controverted by either contrary
evidence in the record [or] by evidence of agency bad faith.” Id. (quoting Larson, 565 F.3d at
862). As such, summary judgment is appropriate for DOJ under Exemption 1 for the “discrete
The Times also argues that the DOJ fails to explain why information regarding
intelligence methods and tradecraft is contained in the memoranda. (Dkt. No 49 at 23.) But it
cites no authority that would require the DOJ to explain why such information might be present
in the memoranda at issue, and the CIA declarant’s assertion that the memoranda contain
information concerning intelligence methods and tradecraft is entitled to deference. See
Associated Press, 498 F. Supp. 2d at 710.
portions of the five reports that . . . are currently and properly classified” as falling within the six
categories of information the Government seeks to withhold. (Payne Decl. ¶ 7.)
The Court alternatively concludes that DOJ has met its burden to withhold information
from the categories in question under Exemption 3, incorporating the secrecy provisions of the
CIA Act, 50 U.S.C. § 3507, and the National Security Act, 50 U.S.C. § 3024(i)(1).
The CIA Act provides that the Director of National Intelligence “shall be responsible for
protecting intelligence sources or methods from unauthorized disclosure,” and exempts the CIA
from “any other law which require[s] the publication or disclosure of the organization, functions,
names, official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C.
§ 3507. The National Security Act, 50 U.S.C. § 3024(i)(1), provides that “the Director of
National Intelligence shall protect intelligence sources and methods from unauthorized
The National Security Act vests the intelligence community with “very broad authority to
protect all sources of intelligence information from disclosure.” Am. Civil Liberties Union v.
U.S. Dep’t of Justice, 681 F.3d 61, 73 (2d Cir. 2012) (quoting Sims, 471 U.S. at 168-69) (internal
quotation marks omitted). Indeed, the Supreme Court has instructed that the “‘plain meaning’ of
‘intelligence sources and methods’ in this context, ‘may not be squared with any limiting
definition that goes beyond the requirement that the information fall within the Agency’s
mandate to conduct foreign intelligence.’” Id. (quoting Sims, 471 U.S. at 169).
Here, as relevant, the Government invokes both the National Security Act and the CIA
Act to protect the details of foreign liaison relationships (Payne Decl. ¶¶ 19, 20), and the
National Security Act to protect the locations of covert CIA facilities abroad and CIA
intelligence methods and tradecraft (id. ¶ 19). As with the Exemption 1 withholdings, the Times
argues that the affidavits simply do not provide sufficiently detailed analysis to carry the
Government’s burden. (See Dkt. No. 49 at 23-24.)
As explained earlier, to meet its burden under Exemption 3, DOJ must demonstrate that
the claimed statute is an exemption statute under FOIA and that the withheld material falls
within its scope. See Sims, 471 U.S. at 167. It is well settled that each of the statutes at issue
qualifies as an Exemption 3 statute. See ACLU, 681 F.3d at 72-73; Wilner, 592 F.3d at 72. And
the statutes clearly cover the categories of information that DOJ seeks to withhold. See
Schoenman v. FBI, 841 F. Supp. 2d 69, 83-84 (D.D.C. 2012) (approving government
withholding—pursuant to the National Security Act, CIA Act, and FOIA Exemption 3—of
information about “classified intelligence sources and methods, including information pertaining
to human and foreign intelligence service sources, covert installations, . . . and technical
intelligence collection”); Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479, 503 (S.D.N.Y. 2010)
(approving the withholding of information about CIA human intelligence sources, foreign
government liaisons, covert field installations abroad, and clandestine intelligence collection
operations). Exemption 3, incorporating the National Security Act and CIA Act, provides the
Government with discretion to withhold records where, as here, the information sought to be
redacted and withheld falls within the broad scope of the claimed statue. See ACLU v. U.S.
Dep’t of Def., 664 F. Supp. 2d 72, 78 (D.D.C. 2009) (“It is within [Government’s] broad
discretion to determine ‘whether disclosure of information may lead to an unacceptable risk of
compromising the . . . intelligence-gathering process.’” (quoting Sims, 471 U.S. at 180)).
Accordingly, the Court determines that FOIA Exemption 3 provides an alternative basis
for granting summary judgment to the Government to withhold the discrete portions of the
memoranda that contain the six identified categories of national security information.
Exemptions 6 & 7(C) – Privacy
In addition to the national security information withheld under Exemptions 1 and 3, DOJ
invokes Exemption 6 and 7(C) to withhold “personally identifying information of third parties
including witnesses, the targets of the investigations, covert and overt CIA personnel, foreign
officials, and human sources” from each of the five memoranda. (Dkt. No. 44 at 23.)
Exemption 6 protects “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). In evaluating the application of Exemption 6, the Court must “balance the public
need for the information against the individual’s privacy interest.” Associated Press v. U.S.
Dep’t of Defense, 554 F.3d 274, 291 (2d Cir. 2009).
Exemption 7(C) overlaps with Exemption 6, protecting from disclosure “records or
information compiled for law enforcement purposes” that “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5 U.S.C § 552(7)(C). In applying
Exemption 7(C), courts conduct a balancing test similar to that employed in Exemption 6
analyses, balancing whether “the invasion of personal privacy resulting from release of the
information would outweigh the public interest in disclosure.” Halpern v. FBI, 181 F.3d 279,
296 (2d Cir. 1999).
Exemption 7(C), however, is broader than Exemption 6. “The adverb ‘clearly,’ found in
Exemption 6, is not used in Exemption 7(C).” Nat’l Archives & Records Admin. v. Favish, 541
U.S. 157, 165-66 (2004). Moreover, “whereas Exemption 6 refers to disclosures that would
constitute an invasion of privacy, Exemption 7(C) encompasses any disclosure that ‘could
reasonably be expected to constitute’ such an invasion.” Id. (quoting U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 756 (1989)). The parties agree that the
Court should apply Exemption 7(C) in its privacy analysis, because it is broader and requires a
lesser showing. (See Dkt. No. 44 at 23; Dkt. No. 49 at 27.)
Here, “third parties including witnesses, the targets of the investigations, covert and overt
CIA personnel, foreign officials, and human sources,” whose personally identifying information
is being withheld, have a strong privacy interest in not being identified with the Government’s
criminal investigation. (Dkt. No. 44 at 23-24.) On the other hand, “[t]he only relevant public
interest in the FOIA balancing analysis is the extent to which disclosure of the information
sought would she[d] light on an agency’s performance of its statutory duties or otherwise let
citizens know what their government is up to.” Bibles v. Or. Natural Desert Assoc., 519 U.S.
355, 355-56 (1997) (second alteration in original) (quotation marks and citations omitted).
The Times argues, however, that the government provides insufficient detail for this
Court to conduct the relevant balancing inquiry for each individual whose personal information
may be implicated in the memoranda. (Dkt. No. 49 at 27-29.) Mr. Durham, for example, notes
only that the release of identifying information could “carr[y] a strong negative connotation and
a stigma,” and that it “could subject them to harassment or embarrassment, as well as undue
public attention.” (Durham Decl. ¶ 15.) The Times argues that the Government must be more
specific, “describing the role that various categories of people actually play in the memoranda
and establishing more concretely that there has been no waiver of a person’s privacy interest.”
(Dkt. No. 49 at 29.)
But, as the Government notes, the law does not impose such a requirement where, as
here, the disclosure of the identifying information of these individuals would not shed any
additional light on Government conduct, a fact not disputed by the Times. (See Dkt. No. 44 at
24; Dkt. No. 51 at 23-25.) D.C. Circuit case law, for example, “permits an agency to withhold
‘the names and addresses of private individuals appearing in files within the ambit of Exemption
7(C) [unless disclosure] is necessary in order to confirm or refute compelling evidence that the
agency is engaged in illegal activity.” Nation Magazine, Washington Bureau v. U.S. Customs
Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (alteration in original) (quoting SafeCard Servs., 926
F.2d at 1206). This is described as a “categorical rule.” Id. Here, the Times does not allege that
the identities of any of the individuals identified by the Government is necessary in order to
confirm or refute compelling evidence that the agency engaged in illegal activity in drafting the
memoranda. See Fitzgibbon v. CIA, 911 F.2d 755, (D.C. Cir. 1990) (“We have said quite
recently that ‘[e]xemption 7(C) takes particular note of the strong interest of individuals, whether
they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged
criminal activity.’” (alteration in original) (internal quotation marks omitted) (quoting
Dunkelberger v. Department of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990))).
Balancing these interests, the Court grants summary judgment to DOJ to withhold
identifying information of targets, witnesses, foreign officials, overt and covert CIA personnel,
and human sources pursuant to Exemptions 6 and 7(C). This grant is to be narrowly limited to
the personally identifying information contained in the memoranda as the agency is not
permitted “to exempt from disclosure all of the material in an investigatory record solely on the
grounds that the record includes some information which identifies a private citizen or provides
that person’s name and address.” Nation Magazine, 71 F.3d at 896.
Exemption 5 – Scope of the Discovery Privileges
Finally, the parties revisit the applicability of Exemption 5 to the Recommendation
Memoranda. Exemption 5 protects “inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). Exemption 5 encompasses traditional common law privileges against
disclosure, including the attorney-client and deliberative process privileges. See Nat’l Council of
La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005).
In its September Order, the Court recognized that the Attorney General publicly
acknowledged and expressly relied on the five memoranda when he determined there was
insufficient evidence to bring a criminal case, waiving the Government’s right to invoke
Exemption 5 to withhold the memoranda under the express adoption doctrine. (Dkt. No. 33 at
18-22.) The Court did not determine, however, the extent of the waiver at issue, noting that
those sections that “do not support—or even explicitly concern—Durham’s reasoning regarding
the sufficiency of the evidence or the applicable federal law” may be properly withheld pursuant
to Exemption 5. (Id. at 21.) The Court noted, hypothetically, that the memoranda may contain a
multitude of reasons not to pursue criminal charges in this case, one (or more) of which was not
expressly adopted by the Attorney General. (See id.) In that case, the express adoption doctrine
would not apply and the Government’s withholding of such information would be justified under
Exemption 5. (Id.)
Now, the Government notes that it has “reviewed the documents, and determined that the
Procedural Background sections [and eleven exhibits to] the Recommendation Memoranda do
not reflect Durham’s reasoning.” (Dkt. No. 44 at 25 (citing Butler Decl. ¶ 11-13).) It argues that
“[t]he Attorney General did not rely on investigations and analysis that pre-dated Durham’s
appointment, which is what the Procedural recitations and exhibits to the Recommendation
Memoranda reflect.” (Dkt. No. 51 at 22.) To the extent that those sections and exhibits were not
adopted by the Attorney General, it argues, they are properly withheld under Exemption 5. (Dkt.
No. 44 at 25.)
With respect to the exhibits, the Government’s analysis contorts the logic behind the
Court’s September Order, however. The September Order applied the express adoption doctrine
to the work-product doctrine. (Dkt. No. 33 at 13.) And “[w]hile it may well be that work
product is more deeply concerned with the revelation of an attorney’s opinions and strategies,”
the Second Circuit expressly found “no reason why work product cannot encompass facts as
well.” In re Grand Jury Subpoena, 282 F.3d 156, 161 (2d Cir. 2002). The Butler Declaration
notes that the exhibits “do not themselves set forth the analysis and reasoning leading to Mr.
Durham’s and his team[’]s conclusions,” but that they were “collected and considered by Mr.
Durham and his team in the course of their investigation.” (Butler Decl. ¶ 13.) Those “facts”
upon which Mr. Durham and his team relied in their reasoning or conclusions, which were later
expressly adopted by the Attorney General, are subject to the express adoption doctrine as
applied to the work-product doctrine. This is in keeping with the rationale underpinning the
express adoption doctrine. Where an agency “referenc[es] a protected document as authoritative,
it cannot then shield the authority upon which it relies from disclosure.” Brennan Ctr. for Justice
at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 205 (2d Cir. 2012).
Accordingly, the express adoption doctrine applies to the referenced exhibits, such that they do
not fall under FOIA Exemption 5.
With respect to the Procedural Background sections of Recommendation Memoranda, the
Butler Declaration provides that they give “an in-depth recitation of inter-agency Executive
Branch actions and deliberations that culminated in Mr. Durham’s appointment to serve as
Acting United States Attorney for the Eastern District of Virginia to investigate whether criminal
laws were violated.” (Id. ¶ 12.) This section of the memoranda was not adopted by the Attorney
General and is properly withheld under Exemption 5. Therefore, unless the circumstances
surrounding Mr. Durham’s appointment are relevant to the reasoning and conclusion of the
Recommendation Memoranda, which this Court struggles to imagine is the case, this section is
not subject to the express adoption doctrine and is properly withheld under Exemption Five. See
Wood v. FBI, 432 F.3d 78, 84 (2d Cir. 2005) (finding “fatal” to an express adoption doctrine
argument the fact that “[t]here [was] no evidence in the record from which it could be inferred
that DOJ adopted the reasoning” at issue).
For the foregoing reasons, DOJ’s motion for partial summary judgment is granted in part
and denied in part; and the Times’s cross-motion for partial summary judgment is granted in part
and denied in part.
The Government is hereby ordered to make public the challenged documents, with
appropriate redactions, within 20 days of this order, pursuant to 5 U.S.C. § 552.
The parties are directed to submit five-page letter motions on whether the Court should
assess reasonable attorney fees and costs against the United States within 30 days of this order,
pursuant to 5 U.S.C. § 552(a)(4)(E).
The Clerk of Court is directed to close the motions at Docket Numbers 40 and 48.
Dated: February 21, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
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