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Leopold v. National Security Agency

United States District Court, District of Columbia

July 11, 2016

JASON LEOPOLD, Plaintiff,
v.
NATIONAL SECURITY AGENCY, et al, Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, United States District Judge

         In March 2014, Plaintiff Jason Leopold submitted two Freedom of Information Act ("FOIA") requests seeking records related to surveillance of federal and state judges - one to the National Security Agency ("NSA") and one to the Department of Justice's Office of Legal Counsel ("OLC" and, together with NSA, "Defendants"). Both agencies indicated that they had no records responsive to the FOIA requests, prompting Plaintiff to initiate this litigation.

         In July 2015, this court granted in part and denied in part Defendants' first motion for summary judgment, finding that Defendants had failed to conduct an adequate search and to adequately explain the basis for their search in certain limited respects. Among other things, the court ordered OLC to reprocess Plaintiffs FOIA request by searching for draft memoranda and legal opinions related to surveillance of federal and state judges.

         Defendants have now renewed their motion for summary judgment. Plaintiff challenges only the manner in which OLC searched for these draft memoranda and legal opinions.

         Upon consideration of Defendants' renewed motion for summary judgment and the parties' briefs in support thereof and in opposition thereto, and for the reasons set forth below, Defendants' motion is hereby DENIED.

         I. BACKGROUND

         The procedural and factual background of this case is set forth in the court's July 2015 Memorandum Opinion granting in part and denying in part Defendants' first motion for summary judgment. See generally Leopold v. Nat'l Sec. Agency, 118 F.Supp.3d 302 (D.D.C. 2015). The July 2015 Memorandum Opinion ordered that two additional searches be conducted and that certain other information be provided to Plaintiff. See id.

         Defendants' renewed motion for summary judgment centers on one of the additional searches ordered by the court:

The court is persuaded that "any and all memoranda and legal opinion[s]" means exactly what it says - any and all, meaning drafts and final product. OLC has not provided any persuasive justification regarding why it did not search for drafts, and is therefore ordered to reprocess Leopold's request and conduct a search for draft memoranda and legal opinions.

Id. at 309-10 (citation to record omitted).

         Prior to the issuance of the court's July 2015 Memorandum Opinion and Order, "OLC had already conducted a search for final legal advice 'about the propriety of surveilling federal and state judges' and located no responsive documents." (Mot. Ex. 3 ("Third Colborn Decl.") ¶ 10). According to OLC Special Counsel Paul P. Colborn, "[t]he fact that no final legal advice on this subject was located . . . made it much more difficult to identify any likely locations to search for any draft legal advice that might exist." (Id.). For example,

[h]ad OLC located final legal advice concerning the topic, [OLC] would have been able to determine whether a file had been maintained with materials related to the advice, and could have located any drafts that may have been maintained in that file. [OLC] also likely would have been able to identify the principal attorneys who had worked on the advice. With that information as a lead, [OLC] would have searched the individual hardcopy and computer files of those attorneys for drafts of the advice.

(Id.).

         The search that OLC ultimately conducted pursuant to the court's July 2015 Memorandum Opinion and Order proceeded as follows:

[A]n OLC attorney asked an OLC Deputy Assistant Attorney General and an OLC Senior Counsel, both of whom are senior attorneys with long tenures in OLC (the Deputy Assistant Attorney General joined the Office in 1989; the Special Counsel joined the Office in 1998, departed for nine years in 2001, and rejoined the Office in 2010) and have close familiarity with OLC's work on national security and surveillance matters, . . . whether they were aware of any classified or unclassified OLC projects concerning the ...

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