The New York Times Company, et al v. United States Department of the Treasury
Filing
38
OPINION AND ORDER re: 27 MOTION for Discovery Pursuant to Fed. R. Civ. P. 56(d) filed by Charlie Savage, The New York Times Company. Treasury is hereby ORDERED to provide an affidavit or declaration from Marshall H. Fields, Jr. on or before May 13, 2016. The Times' cross-motion is due May 27, 2016. Treasury's response and reply is due June 10, 2016. The Times' reply is due June 24, 2016. The Times' motion is DENIED. The Clerk of the Court is respectfully directed to terminate the motion. Doc. 27. It is SO ORDERED. (As further set forth in this Order.) (Cross Motions due by 5/27/2016. Responses due by 6/10/2016, Replies due by 6/24/2016.) (Signed by Judge Edgardo Ramos on 4/26/2016) (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY and
CHARLIE SAVAGE,
OPINION AND ORDER
Plaintiffs,
15 Civ. 5740 (ER)
- against UNITED STATES DEPARTMENT OF
THE TREASURY,
Defendant.
Ramos, D.J.:
The New York Times Company and reporter Charlie Savage (collectively, “the Times”)
seek depositions of three employees of the United States Department of the Treasury
(“Treasury”), pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56(d). In the
underlying Freedom of Information Act (“FOIA”) suit, the Times is challenging Treasury’s
decision to withhold a thirteen-page legal memorandum (the “Memo”) under a statutory
exemption from FOIA’s disclosure requirements. The parties’ cross-motions for summary
judgment are currently pending before the Court but have not yet been fully briefed.
The Times’ motion for depositions is DENIED, but as explained further below, Treasury
is ordered to submit an additional affidavit or declaration from one of its officials.
I. BACKGROUND
A. FOIA, Exemption 5, and “Working Law”
FOIA “requires the government to disclose its records unless its documents fall within
one of the specific, enumerated exemptions set forth in the Act.” Nat’l Council of La Raza v.
Dep’t of Justice, 411 F.3d 350, 355 (2d Cir. 2005). The agency bears the burden of
demonstrating that an exemption applies. Id. at 356.
The relevant FOIA exemption in this case is Exemption 5, which exempts from
disclosure “inter-agency or intra-agency memorandums or letters which 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).
“Courts have interpreted Exemption 5 to encompass traditional common-law privileges against
disclosure, including the…executive, deliberative process and attorney-client privileges.” La
Raza, 411 F.3d at 356 (citation omitted).
“The deliberative process privilege applies to documents that are predecisional and
deliberative.” N.Y. Times v. U.S. Dep’t of Justice, 101 F. Supp. 3d 310, 318 (S.D.N.Y. 2015)
(citation omitted). “A document is predecisional if it is ‘prepared in order to assist an agency
decisionmaker in arriving at his decision’ and deliberative if it is ‘actually related to the process
by which policies are formulated.’” Id. (quoting Brennan Ctr. for Justice at N.Y. Univ. Sch. of
Law v. U.S. Dep’t of Justice, 697 F.3d 184, 194 (2d Cir. 2012)).
A document normally protected by Exemption 5 loses that protection and must be
disclosed if it includes “an opinion or interpretation” that “embodies the agency’s effective law
and policy,” in other words, its “working law.” Brennan Ctr., 697 F.3d at 195 (internal quotation
marks omitted) (quoting N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). “The
reasons for a decision made by an agency, or a policy actually adopted,…‘constitute the working
law of the agency.’” Id. at 196 (quoting Sears, 421 U.S. at 153). The “working law analysis is
animated by the affirmative provisions of FOIA,” which generally requires disclosure of “final
opinions, statements of policy and interpretations which have been adopted by the agency, and
instructions to staff that affect a member of the public.” Id. at 200–01 (citations and internal
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quotation marks omitted). Neither the attorney-client privilege nor the deliberative-process
privilege can be invoked to justify withholding a document that contains an agency’s working
law. N.Y. Times, 101 F. Supp. 3d at 318–19 (citations omitted).
B. The Times’ FOIA Request
This case involves notice requirements for the use of electronic surveillance by the Office
of Foreign Assets Control (“OFAC”), an agency within Treasury responsible for, among other
things, administering economic sanctions programs against foreign governments, entities, and
individuals suspected of engaging in international terrorism. Under the Foreign Intelligence
Surveillance Act of 1978 (“FISA”), targets of electronic surveillance are entitled to notice
whenever the Government intends to use surveillance evidence against them in a legal
proceeding. See 50 U.S.C. § 1806(c). On September 30, 2014, the Times reported that lawyers
in the Obama Administration were “debating whether the Treasury Department must inform the
people or groups it lists as foreign terrorists when it relies on warrantless surveillance as the basis
for the designation.” Charlie Savage, Debate Brews Over Disclosing Warrantless Spying, N.Y.
TIMES, Oct. 1, 2014, at A3. 1
That same day, the Times submitted to Treasury a request under FOIA (the “Request”)
seeking:
[A]ccess to documents showing the legal conclusions accepted by the Treasury
Department as the governing legal protocol for under what circumstances, if any,
and at what stage of the process, FISA’s notice provision applies to Office of
Foreign Assets Control sanctioning decisions and challenges to them.
Declaration of David E. McCraw (“McCraw Decl.”) (Doc. 29), Ex. A (“Request”).
1
The article appeared online on September 30, 2014, and is also available at:
http://www.nytimes.com/2014/10/01/us/debate-simmers-over-disclosing-warrantless-spying.html.
3
Treasury FOIA Officer Marshall H. Fields, Jr. (“Fields”) responded to the Request on
April 13, 2015 (the “Fields Reply”). See McCraw Decl., Ex. B (“Fields Reply”). The Fields
Reply stated that OFAC had conducted a search and “found one document consisting of 13 pages
responsive to your request,” i.e., the Memo at issue here. Id. at 1. OFAC determined, however,
that the Memo was “exempt in its entirety from disclosure” pursuant to Exemption 5, based on
both the attorney-client and deliberative-process privileges. Id.
The Times filed an administrative appeal on April 16, 2015 (the “Times Appeal”),
arguing that the Memo’s inclusion of legal conclusions “accepted by the Treasury Department as
the governing legal protocol” necessarily meant that the document contained Treasury’s
“effective law and policy,” i.e., Treasury’s “working law,” and thus must be disclosed. See
McCraw Decl., Ex. C (“Times Appeal”) at 2–3. The Times also urged Treasury to approve a
discretionary release of the Memo given the public importance of the issue and the low risk
associated with disclosing already-settled legal protocol. Id. at 1–2.
On May 21, 2015, John E. Smith (“J. Smith”), Acting Director of OFAC, denied the
Times’ appeal (the “J. Smith Reply”). See McCraw Decl., Ex. D (“J. Smith Reply”). The J.
Smith Reply determined that the Memo “is exclusively a pre-decisional and deliberative record,
and it should not be released under the working law theory or subject to a discretionary release.”
Id. at 1. 2
On July 22, 2015, the Times filed suit in this Court seeking a judgment requiring
Treasury to disclose the Memo. Complaint (Doc. 1). Treasury moved for summary judgment on
December 23, 2015. (Doc. 17). In support of its motion, Treasury submitted a declaration from
Bradley T. Smith (“B. Smith”), Chief Counsel for Foreign Assets Control at Treasury (the “B.
2
Since the Fields Reply determined that the Memo was responsive to the request, the J. Smith Reply did not
independently assess the Memo’s responsiveness. Declaration of John E. Smith (Doc. 36) ¶ 11.
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Smith Declaration”). See McCraw Decl., Ex. E (“B. Smith Decl.”) ¶ 1. Most relevant for the
instant motion, the B. Smith Declaration states as follows:
My office was tasked by OFAC with a search for records responsive to Plaintiff’s
FOIA request. When conducting our search, we construed Plaintiff’s FOIA
request liberally when determining which records were responsive. We located
an undated, draft memorandum prepared by Treasury attorneys, and identified it
as potentially responsive to the request. The draft memorandum presented legal
arguments on behalf of OFAC with respect to OFAC’s obligations under the
FISA in the context of designations and sanctioning decisions. The reasoning in
the draft memorandum does not reflect a final legal or policy determination by
Treasury. The document is not “governing legal protocol” of the Treasury
Department and therefore is not responsive to that aspect of the FOIA request. It
is not precedential, it is not used by or provided to OFAC staff as guidance, and it
is a draft document. However, it does reflect draft legal analysis on the
application of “FISA’s notice provision to [OFAC’s] sanctioning decisions and
challenges to them” and thus given our liberal construction of Plaintiff’s request,
we determined that it was responsive but also deliberative and privileged in
nature.
B. Smith Decl. ¶ 7. The B. Smith Declaration further states that the Memo was undated and
marked “privileged,” “intended to be kept confidential,” and has been circulated only to a
“limited number of offices” in Treasury and the Department of Justice (“DOJ”). Id. at ¶ 14. It
states that the Memo was addressed “For The File,” was marked “Privileged, Draft-Predecisional
and Deliberative, For Official Use Only” and was in fact pre-decisional and deliberative, was
prepared by “certain Treasury attorneys” in advance of a meeting with DOJ “to help frame issues
subject to ongoing deliberative discussions,” and memorialized only “initial, preliminary
advice.” Id. at ¶¶ 15–16. The declaration states that the Memo does not contain any working
law because it “does not have the force and effect of law within Treasury,” and because “the
underlying legal analysis and reasoning in the memorandum has not been adopted by Treasury”
or “used as a reference document by OFAC personnel.” Id. at ¶ 16.
5
On February 2, 2016, the Times filed the instant motion pursuant to Rule 56(d), seeking
depositions of Fields, J. Smith, and B. Smith. (Doc. 27). Treasury opposed the motion on
February 23, 2016, submitting additional declarations from Fields and J. Smith. (Docs. 34–36).
The declaration from Fields (the “Fields Declaration”) explained his regular process,
upon receiving FOIA requests, for consulting with subject matter experts within both OFAC and
B. Smith’s office, the Office of Chief Counsel (Foreign Assets Control) (“OCC”). Declaration
of Marshall H. Fields, Jr. (“Fields Decl.”) (Doc. 35) ¶¶ 10–14. The declaration then describes
the processing of the Request in this case: Fields’ unit tasked individuals within OFAC and
OCC to search for responsive records, OCC located the Memo, which “they thought may be
responsive,” and sent it to Fields; Fields consulted with OCC to determine whether the Memo
was in fact responsive and whether Exemption 5 might apply; OCC “determined” that the Memo
was responsive and “recommended” withholding it under Exemption 5 based on the attorneyclient and deliberative-process privileges; “[b]ased on the consultation with and recommendation
from OCC,” Field’s office drafted and sent the Fields Reply to the Times. Id. at ¶¶ 15–19.
The declaration from J. Smith (the “J. Smith Declaration”) states that, after considering
the Times’ arguments on appeal, he “determined that OFAC properly withheld the memorandum
under Exemption [5].” Declaration of John E. Smith (“J. Smith Decl.”) (Doc. 36) ¶ 10. It further
states that J. Smith “did not consider, nor did [he] conduct an independent assessment of,
whether or not the document was responsive to the FOIA request, since the question of
responsiveness was not challenged in the appeal by the NYT.” Id. at ¶ 11. J. Smith focused only
on the applicability of Exemption 5 “and whether the record should be released under the
working law theory,” and “assumed that the document was responsive.” Id.
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II. LEGAL STANDARDS
Fed. R. Civ. P. 56(d), entitled “When Facts Are Unavailable to the Nonmovant,” provides
as follows: “If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order.”
In FOIA actions, “[a]ffidavits submitted by an agency are accorded a presumption of
good faith; accordingly, discovery relating to the agency’s search and the exemptions it claims
for withholding records generally is unnecessary if the agency’s submissions are adequate on
their face.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citation and
internal quotation marks omitted). “In order to justify discovery once the agency has satisfied its
burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to
impugn the agency’s affidavits or declarations, or provide some tangible evidence that an
exemption claimed by the agency should not apply or summary judgment is otherwise
inappropriate.” Id. (citations omitted). Courts should not, however, “cut off discovery before a
proper record has been developed; for example, where the agency’s response raises serious
doubts as to the completeness of the agency’s search, where the agency’s response is patently
incomplete, or where the agency’s response is for some other reason unsatisfactory.” Families
for Freedom v. U.S. Customs & Border Prot., 837 F. Supp. 2d 331, 336 (S.D.N.Y. 2011)
(citation and internal quotations marks omitted). District courts have “broad discretion to
manage the scope of discovery in FOIA cases.” Id. (citations and internal quotation marks
omitted).
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III. DISCUSSION
The Times does not maintain that Treasury’s search was incomplete or inaccurate.
Rather, the Times argues that depositions are needed because there remains a factual dispute in
the case—namely, the contemporaneous basis for the initial determination that the Memo was
“responsive” to the Request.
According to the Times, the issue is disputed because Treasury officials have
contradicted themselves. The Fields Reply stated that the Memo was “responsive” to the
Request, but now the B. Smith Declaration explains that the Memo is not actually responsive to
the “aspect” of the request seeking “governing legal protocol.” See Memorandum of Law in
Support of Plaintiffs’ Motion for Discovery (“Times Br.”) (Doc. 28) at 2–3 (arguing that
depositions are warranted because the B. Smith Declaration “contradict[s]” the Fields Reply and
J. Smith Reply on the “threshold issue” of whether the Memo “is responsive to the Request”).
Treasury did not specifically articulate this “aspect”-based reasoning during the administrative
process, raising it for the first time on its motion for summary judgment before this Court.
To put a finer point on it, the Times wants depositions to probe whether Treasury’s
“liberal” determination that the Memo was responsive to the some of the request but not the
“aspect” requesting the “governing legal protocol” was (i) the actual reasoning employed at the
time the request was processed, or (ii) an ex-post explanation created for this lawsuit. See Times
Br. at 4 (describing the “fundamental factual dispute” as whether the Memo shows the
“governing legal protocol…accepted by the Treasury Department”); Reply Memorandum of Law
in Support of Plaintiffs’ Motion for Discovery (“Times Rep.”) (Doc. 37) at 1 (same). This issue
is surely material. If the record showed that the explanation in the B. Smith Declaration was not
Treasury’s actual contemporaneous reasoning, it could suggest that Treasury originally
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determined that the Memo contained “governing legal protocol” and thus the agency’s working
law, potentially providing a basis for the Court to order disclosure. 3
What is less clear is whether this material issue is actually in dispute based on the current
state of the record. Government affidavits in FOIA cases are granted a presumption of good
faith. Carney, 19 F.3d at 812. The B. Smith Declaration affirmatively states that the
contemporaneous reasoning underlying the Fields Reply was the “liberal,” “aspect”-based
interpretation laid out in that declaration. See B. Smith Decl. ¶ 7. The Fields Declaration
confirms that Fields consulted with B. Smith’s office, OCC, in order to determine whether the
Memo was responsive, and that it was in fact OCC who made the original responsiveness
determination. See Fields Decl. ¶¶ 17–18. Nothing in these declarations suggests that two
different responsiveness determinations were made, one at the time the Request was submitted
and another in this litigation. The Times, therefore, is not really identifying a contradiction or
inconsistency, so much as it is asking the Court to infer bad faith from the fact that the Fields
Reply did not explicate the reasoning later provided in the B. Smith Declaration. This provides
only a weak inference of bad faith, at best, and thus the Court declines to order depositions on
that basis. 4
3
By asking for documents showing “governing legal protocol,” the Times tried to craft a request exclusively for
documents that could not be withheld under Exemption 5 because they contained the agency’s working law. See
Times Appeal at 3 (“[T]he initial FOIA request was carefully crafted to avoid the kinds of internal deliberations that
are often justifiably withheld.”).
4
Indeed, the cases relied upon by the Times, Times Br. at 3–4, involve far more glaring inconsistencies or factual
gaps than exist in this case. Cf. Porter v. U.S. Dep’t of Justice, 717 F.2d 787, 791–93 (3d Cir. 1983) (granting
further discovery where ex parte affidavit justifying national-security-based redactions failed to explain significance
of classification stamps on responsive documents and whether they were relied upon to justify redactions, and where
previous affidavit that was not ex parte in fact revealed more information than ex parte affidavit); Wash. Post Co. v.
U.S. Dep’t of State, 840 F.2d 26, 38–39 (D.C. Cir. 1988) (allowing deposition, interrogatories, and document
requests where agency failed to provide factual predicate for determination that disclosure of person’s citizenship
status would potentially endanger that person, and where some information about citizenship status had already been
made public), reh’g granted, judgment vacated, 898 F.2d 793 (D.C. Cir. 1990); Schaffer v. Kissinger, 505 F.2d 389,
390–91 (D.C. Cir. 1974) (permitting further discovery where agency failed to provide facts demonstrating whether
documents had been properly classified as “confidential”); Citizens for Responsibility & Ethics in Wash. v. U.S.
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It is true, however, as the Times argues, that the Fields Declaration is not specific enough
and leaves a small but noteworthy gap in the factual record, i.e., the facts underlying his own
individual determination that the Memo was responsive to the Request. Times Rep. at 3–4. The
Government is thus ordered to submit an additional affidavit or declaration from Marshall H.
Fields, Jr. describing the specific factual basis that he relied upon to deem the Memo responsive,
including but not limited to facts provided to him by OCC in its recommendation. 5 Cf. Times
Br. at 2 (requesting deposition from Fields “addressed to the factual basis for [his] belief that the
[Memo] was a responsive document containing the agency’s governing legal protocol,
specifically the facts [he] individually discovered concerning the creation of the [Memo] and its
use within Treasury”).
Further submissions from the other two Treasury officials are not required at this time.
As the Times concedes, B. Smith has already provided representations as to the responsiveness
issue in his declaration. See Times Rep. at 5 (requesting “the same testimony” from Fields and J.
Smith as already received from B. Smith, i.e., “how he construed the initial request and what he
Dep’t of Veterans Affairs, 828 F. Supp. 2d 325, 333–34 (D.D.C. 2011) (ordering further depositions where agency
strategically withheld certain information during first round of discovery and submitted “myriad declarations” that
“evolved and changed,” in case where possibility of intentional or negligent document destruction was at issue); El
Badrawi v. Dep’t of Homeland Sec., 583 F. Supp. 2d 285, 321–22 & n.23 (D. Conn. 2008) (ordering further
discovery after “multiple rounds of declarations, supplemental declarations, and second supplemental declarations”
all failed to establish the adequacy of the agency’s search efforts); Potomac Navigation, Inc. v. U.S. Mar. Admin.,
Nos. WMN-09-217 and WMN-09-218, 2009 U.S. Dist. LEXIS 116673, at *17–18 (D. Md. Dec. 15, 2009) (ordering
further discovery when agency’s conclusory assertion that certain documentation did not exist was “difficult to
believe” given other produced documents and court’s experience with similar FOIA requests).
5
The Times argues that Fed. R. Civ. P. 56(d) is meant to “give rights to the nonmovant” only and is thus not an
appropriate vehicle for an order allowing a movant to submit more affidavits and buttress its own case. Times Br. at
9. But the Times does not dispute, nor could it, that it is well within a district court’s discretion to request additional
submissions from the government to supplement the factual record before resolving a motion for summary
judgment. See, e.g., Am. Civil Liberties Union v. Office of the Dir. of Nat. Intelligence, No. 10 Civ. 4419 (RJS),
2011 WL 5563520, at *13 (S.D.N.Y. Nov. 15, 2011) (citing Halpern v. F.B.I., 181 F.3d 279, 295 (2d Cir. 1999));
Defendant’s Opposition (Doc. 34) at 9 (citing cases).
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learned about the creation, circulation, and use of the document"). 6 And J. Smith did not make a
responsiveness determination, because the Times (naturally) did not appeal the favorable
determination that it initially received on that issue. See J. Smith. Deel.
~
11.
If necessary, the Times may make an appropriate motion for additional discovery after
the parties have completed their summary-judgment briefing, at which time the Court can assess
the entirety of the record and determine whether or not any genuine issues of material fact still
remain that require further discovery.
IV. CONCLUSION
Treasury is hereby ORDERED to provide an affidavit or declaration from Marshall H.
Fields, Jr. on or before May 13, 2016.
The Times' cross-motion is due May 27, 2016. Treasury's response and reply is due
June 10, 2016. The Times' reply is due June 24, 2016.
The Times' motion is DENIED. The Clerk of the Court is respectfully directed to
terminate the motion. Doc. 27.
It is SO ORDERED.
Dated:
April 26, 2016
New York, New York
Edgardo Ramos, U.S.D.J.
6
The Times attests that the deposition ofB. Smith would focus "on the factual basis for his conclusion that the
document was non-responsive and a draft." Times Br. at 2. This is essentially asking to take a deposition in order to
glean more specific details than the government's declaration provides, a request which could be made in every
garden-variety FOIA suit. The request is not based on any sufficient allegation of bad faith, inconsistency, or
inaccuracy.
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