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Electronic Privacy Information Center v. Dep't of Justice

October 31, 2008

ELECTRONIC PRIVACY INFORMATION CENTER, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, DEFENDANT.
AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS,
v.
DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

In these consolidated actions, plaintiffs Electronic Privacy Information Center, American Civil Liberties Union, American Civil Liberties Union Foundation, and the National Security Archive Fund, Inc. (collectively "EPIC") bring claims against the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking the release of agency records regarding the former policy of the Bush Administration to conduct, under certain circumstances, surveillance of domestic communications without the prior authorization of the Foreign Intelligence Surveillance Court ("FISA Court").*fn1 DOJ previously moved for summary judgment and this court issued a Memorandum Opinion and Order on September 5, 2007, EPIC v. Dep't of Justice, 511 F. Supp. 2d 56 (D.D.C. 2007) ("EPIC 1"), that granted in part and denied in part DOJ's motion.

Before the court are DOJ's renewed motion for summary judgment [# 50]*fn2 and EPIC's renewed motion for in camera review of withheld records [# 57]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that DOJ's renewed motion for summary judgment must be granted in part and denied in part, and that EPIC's renewed motion for in camera review must be granted in part and denied in part.

I. BACKGROUND

DOJ has moved for summary judgment with respect to all documents that remain at issue in this litigation after EPIC 1. EPIC challenges the withholding of thirty of these remaining documents. Pls.' Opp'n 8 n.7; 31 n. 28.*fn3 EPIC does not challenge the withholding of any other documents. Accordingly, the court grants summary judgment to DOJ as to all documents other than the thirty documents specifically challenged by EPIC.

II. ANALYSIS

DOJ contends that the documents at issue are properly withheld pursuant to Exemptions 1, 3, and/or 5 of FOIA,*fn4 and that most of the withheld documents contain classified information.*fn5 EPIC asserts that DOJ's justifications for withholding are either improper or insufficiently justified and seeks an order for in camera review of the documents so that the court is able to verify whether DOJ has appropriately withheld the information in question. EPIC also contends that DOJ has failed to adequately explain why information not exempt from disclosure cannot be segregated from exempt information and produced.*fn6 Eighteen of the thirty documents have been withheld by OLC.*fn7 The remaining twelve documents have been withheld by the FBI. The court discusses these two categories of documents in turn.

A. OLC Documents

The eighteen documents withheld by OLC fall into one of two categories: (1) documents related to the President's reauthorization of the TSP and (2) documents related to OLC's legal opinions. EPIC challenges the application of Exemptions 1, 3, and 5 to these documents. Below, the court addresses these categories separately with respect to the issue of whether Exemptions 1 and 3 apply to the documents. The court addresses these categories together with respect to the issue of whether Exemption 5 applies.

1. Exemptions 1 and 3 as Applied to Documents that Involve the President's Reauthorization of the TSP

Seven of the documents withheld by OLC pursuant to Exemptions 1 and 3 relate to the President's reauthorization of the TSP.*fn8 Because the government has publicly acknowledged the existence of the TSP and the program is no longer authorized or in use, EPIC asserts that this court should scrutinize especially closely DOJ's contention that releasing these documents would harm national security. EPIC also contends that DOJ has failed to justify its assertion that these documents must be withheld pursuant to Exemptions 1 and 3. EPIC asserts further that, to the extent DOJ has provided any justification for withholding these documents, these justifications are almost entirely redacted from DOJ's public submissions and, as a result, it cannot respond in a meaningful way to DOJ's arguments in support of its position that these documents are exempt from disclosure. EPIC lastly asserts that DOJ's segregability analysis is deficient.

DOJ rejoins that this court should defer to its determination that releasing these documents would harm national security. Even though some information about the TSP may have become public, DOJ asserts that release of further information would harm the United States' intelligence gathering process. DOJ argues that it has extensively justified, in the numerous declarations filed with this court, its determination that these seven documents cannot be disclosed without compromising the United States' foreign intelligence collection activities.

With respect to EPIC's complaint that it is unable to meaningfully challenge DOJ's justifications for withholding disclosure of the documents because portions of the declarations setting forth the justifications have been classified and are available solely for this court's in camera review, DOJ points out that the D.C. Circuit has long recognized that such measures are appropriate in cases in which national security is implicated. Lastly, DOJ asserts that the second Bradbury declaration adequately analyzes the segregability of the documents and has shown that there is no non-exempt information that is segregable from exempt information.

This court is not persuaded by EPIC's argument that because information about TSP has become publicly available there is reason to be skeptical of DOJ's assertion that releasing the withheld documents would harm national security. To the contrary, just because some information about the TSP has become public, it does not follow that releasing the documents poses any less of a threat to national security. As stated in Bradbury's first declaration, "Although the existence of the TSP is now publicly acknowledged, and some facts about the Program have been disclosed, the President has made clear that sensitive information about the nature, scope, operation, and effectiveness of the Program remains classified and cannot be disclosed without causing exceptionally grave harm to U.S. national security." First Bradbury Decl. ¶ 20.

Furthermore, it is "well-established that the judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive purview." Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003). Thus, the court will not second-guess a determination that disclosure of documents would harm national security so long as the agency's declarations provide sufficient detail that the material "withheld is logically within the domain of the exemption claimed," Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)), and "are neither controverted by contrary record evidence nor impugned by bad faith on the part of the agency." King, 830 F.2d at 217; see also People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21, 33-34 (D.D.C. 2006).

In EPIC 1, this court found that DOJ's public submissions, in conjunction with its classified submissions, make clear that these documents are properly classified and exempt from production under FOIA.*fn9 EPIC 1, 511 F. Supp. 2d at 69 (noting that these "records . . . undoubtedly contain classified information"). And there is neither contradictory record evidence nor evidence of bad faith on the part of OLC in withholding documents out of concern for national security. Accordingly, the court defers to DOJ's determination that release of classified information in these seven documents would threaten national security.

EPIC asserts that the publicly available (i.e. redacted) versions of the Bradbury declarations lack detailed justifications as to why these seven documents are subject to Exemptions 1 and 3. EPIC is correct that DOJ's public submissions, in and of themselves, do not contain adequate justifications as to why these seven documents are appropriately withheld pursuant to these exemptions. DOJ, however, has submitted far more detailed justifications in the classified portions of its submissions, which this court has reviewed in camera. The D.C. Circuit has long recognized that in camera review of declarations and documents is proper in cases implicating national security:

We recognize that a fuller public record could enhance the adversary process; but it could also reveal sensitive information. This would violate Exemption 1, for its basic purpose is to ensure that the FOIA will not require disclosure of any such sensitive material unless judicial scrutiny finds it warranted. The proper procedure for a district court, then, is to accept sensitive affidavits in camera.

Hayden v. NSA, 608 F.2d 1381, 1385 (D.C. Cir. 1979). EPIC is understandably frustrated at its inability to review DOJ's submissions in their entirety due to their classified status. However, this court is well aware of, and does not take lightly, its obligation to ensure that DOJ has sufficiently justified withholding these seven documents pursuant to Exemptions 1 and 3. Having reviewed the Bradbury declarations, including the redacted portions of the declarations, the court concludes that the seven documents are properly withheld from disclosure pursuant to Exemptions 1 and 3.

EPIC lastly argues that DOJ's segregability analysis, with respect to these seven documents, is insufficient. In EPIC 1, this court recited the familiar requirement that non-exempt factual information contained in an otherwise protected record must be disclosed unless it is "inextricably intertwined" or otherwise cannot be segregated from any deliberative material in the document. EPIC 1, 511 F. Supp. 2d at 64. This court concluded that it was unable to ascertain whether it was appropriate to authorize the withholding of certain documents in their entirety because DOJ's segregability determination was "too vague and general to be useful." Id. at 69.

The second Bradbury declaration provides additional descriptive information with respect to the seven withheld documents. For example, the first Bradbury declaration does not specifically describe OLC 51. In contrast, the second Bradbury declaration describes OLC 51 as a "one-page memorandum, dated August 9, 2004, from the Acting Assistant Attorney General for OLC to the Deputy Attorney General entitled 'Proposed Memorandum,' which contains OLC's advice concerning a decision to be made by the Deputy Attorney General regarding an intelligence collection activity." Second Bradbury Decl. ¶ 26. Similarly, the court required more information to be provided specifically with respect to FBI 7. The court found that the first Bradbury declaration fails to "substantiate the determination to withhold the document in full. Specifically, DOJ's explanation fails to justify the department's determination that the information therein cannot be segregated from nonexempt information." The second Bradbury declaration at ¶ 51 provides a fuller description of FBI 7. It states that "FBI 7 is a one-page memorandum, dated October 20, ...


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