Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 1 of 66 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, Plaintiffs, 14 Civ. 3776 (AT) I ECF Case V. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. DEFENDANT UNITED STATES DEPARTMENT OF MEMORANDUM OF LAW IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street, 5th Floor New York, New York 10007 Tel.: (212) 637-2746/2725 TARA M. La MORTE ELIZABETH TULIS Assistant United States Attorneys Of Counsel Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 2 of 66 TABLE OF CONTENTS PRELIMINARY STATEMENT FACTUAL BACKGROUND ..4 1. The OIG Reports ..4 A. Of?ces of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Of?ce of the Director of National Intelligence, Report on the President?s Surveillance Program Volumes July 10, 2009 (?Jointh B. Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Section 215 Orders for Business Records, March 2007 (?Section 215 Review C. Of?ce of the Inspector General, Department of Justice, A Review of the Use of Section 215 Orders for Business Records in 2006, March 2008 (?Section 215 Review 11?) .. 6 D. Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008 September 2012 (?702 E. Of?ce of the Inspector General, Department of Justice, A Review of the Use of National Security Letters, March 2007 Review .. 6 F. Of?ce of the Inspector General, Department of Justice, A Review of the Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006, March 2008 Review 11?) ..7 G. Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Exigent Letters and Other Informal Requests for Telephone Records, January 2010 (?Exigent Letters Review?) ..7 II. Procedural History of the OIA Requests ..7 Case Document 39 Filed 12/11/15 Page 3 of 66 I. GOVERNING FOIA STANDARDS II. THE WITHHELD DOCUMENTS AND INFORMATION ARE EXEMPT FROM DISCLOSURE UNDER FOIA ..11 A. The Government Has Properly Withheld Classi?ed Documents and Information Under Exemption 1 ..ll 1. Classi?ed Information Properly Withheld by All Intelligence Agencies ..13 2 Additional Classi?ed Information Properly Withheld by NSA ..19 3 Additional Classi?ed Information Properly Withheld by FBI ..20 B. The Government Has Properly Withheld Documents and Information Under Exemption 3 ..22 C. The Government Has Properly Withheld Documents and Information Under Exemption 5 ..25 1. Deliberative Process Privilege 2. Attorney-Client Privilege ..30 3. Work Product Doctrine .. 33 D. The Government Has Properly Withheld Information Under Exemptions and .. 34 1. The Government Properly Withheld Information Under Exemption ..35 2. The Government Properly Withheld Information Under Exemption ..38 NONE OF ARGUMENTS UNDERMINE THE APPLICABILITY OF THE INVOKED OIA EXEMPTIONS ..43 A. Plaintiffs? Argument That FOIA Exemptions Cannot Protect Information Indicating Agency Wrongdoing Is Foreclosed by Second Circuit and Other Precedent ..43 Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 4 of 66 1. Exemptions 1, 3, and May Properly Protect Information That Would Reveal Wrongdoing, Mistakes or Illegality ..43 2. The Government Did Not Invoke any FOIA Exemptions Improperly to Hide Agency Wrongdoing or Mistakes ..48 B. The Government Has Not Of?cially Acknowledged or Waived the Protections of any Privilege or Exemption with Respect to the Withheld Information ..49 C. The Times? Remaining Challenges Are Meritless .. ..53 Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 5 of 66 TABLE OF AUTHORITIES Cases Page ACLU v. CIA, 892 F. Supp. 2d 234 (D.D.C. 2012) ..46 681 F.3d 61 (2d Cir. 2012) .. passim ACLU v. DOJ, N0. 12 7412 (WHP), 2014 WL 956303 (S.D.N.Y. Mar. 11, 2014) ..39 A. Michael?s Piano, Inc. v. FTC, 18 F.3d 138 (2d Cir. 1994) ..33 Agee v. CIA, 524 F. Supp. 1290 (D.D.C. 1981) ..44 Agility Pub. Warehousing Co. KS. C. v. DOD, No. CV 14-1064 (JDB), 2015 WL 3867978 (D.D.C. June 23, 2015) ..53 Allard K. Lowenstein Int'l Human Rights Project v. DHS, 626 F.3d 678 (2d Cir. 2010) ..39, 40 Amnesty Int ?1 USA v. CIA, 728 F. Supp. 2d 479 (S.D.N.Y. 2010) ..35, 44, 46 Arabian Shield Dev. Co. v. CIA, No. 3-98-CV-0624-BD, 1999 WL 118796 (N .D. Tex. Feb. 26, 1999) ..45 Azmy v. DOD, 562 F. Supp. 2d 590 (S.D.N.Y. 2008) ..36 Baldrige v. Shapiro, 455 US. 345 (1982) ..9 Bennett v. DOD, 419 F. Supp. 663 (S.D.N.Y. 1976) ..44 Bishop v. DHS, 45 F. Supp. 3d 380 (S.D.N.Y. 2014) ..39 Blackwell v. FBI, 646 F.3d 37 (DC. Cir. 2011) ..39 Brinton v. Dep ?t ofState, 636 F.2d 600 (DC. Cir. 1980) ..27 CIA v. Sims, 471 US. 159 (1985) ..22, 23,46 Council on Am. -Islamic Relations, Cal. v. FBI, 749 F. Supp. 2d 1104 (SD. Cal. 2010) ..38, 43 CREW v. DOJ, 658 F. Supp. 2d 217 (D.D.C. 2009) ..26 Carney V. 19 F.3d 807 (2d Cir. 1994) ..9, 10, 48 Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 6 of 66 In re Cnty. of Erie, 473 F.3d 413 (2d Cir. 2007) ..30 Ctr. for Nat 7 Sec. Studies v. DOJ, 331 F.3d 918 (DC. Cir. 2003) ..10, 36 Dep ?t of the Interior v. Klamath Water Users Protective Ass 532 US. 1 (2001) ..9, 28 Diamond v. FBI, 707 F.2d 75 (2d Cir. 1983) ..10 Dillon v. DOJ, F. Supp. 3d 2015 WL 1969840 (D.D.C. 2015) ..38 Doherty v. DOJ, 775 F.2d 49 (2d Cir. 1985) ..39 Ferguson v. FBI, 957 F.2d 1059 (2d Cir. 1992) ..46 Ferguson v. FBI, N0. 89 5071 (RPP), 1995 WL 329307 (S.D.N.Y. June 1, 1995) ..2 Frugone v. CIA, 169 F.3d 772 (DC. Cir. 1999) ..10 Grand Cent. P?ship v. Cuomo, 166 F.3d 473 (2d Cir. 1999) ..25, 26, 52 In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000) ..52 Matter of Grand Jury Subpoenas, 959 F.2d 1158 (2d Cir. 1992) ..52 Halperin v. CIA, 629 .2d 144 (DC. Cir. 1980) ..10 Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) ..34, 46 Hamdan v. DOJ, 797 F.3d 759 (9th Cir. 2015) ..47 Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991) ..25, 26, 27 John Doe Agency v. John Doe Corp, 493 US. 146 (1989) ..9 In re John Doe Corp, 350 F.3d 299 (2d Cir. 2003) ..52 Judicial Watch v. DOJ, 800 F. Supp. 2d 202 (D.D.C. 2011) ..26 Keys v. DOJ, 830 F.2d 337 (DC. Cir. 1987) ..34 Krikorian v. Dep ?t of State, 984 F.2d 461 (DC. Cir. 1993) ..22 Kuzma v. IRS, 775 F.2d 66 (2d Cir. Labow v. DOJ, 66 F. supp. 3d 104 (D.D.C. 2014) ..43 ii Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 7 of 66 Larson v. Dep?t ofState, 565 F.3d 857 (DC. Cir. 2009) ..10, 23, 48 Lead Indus. Ass ?n v. OSHA, 610 F.2d 70 (2d Cir. 1979) ..52 Lehman Bros. Holdings, Inc. v. United States, No. 10 Civ. 6200 (RMB), 2014 WL 715525 (S.D.N.Y. Feb. 24, 2014) ..53 Lesar v. DOJ, 636 F.2d 472 (DC. Cir. 1980) ..44 Mayer Brown LLP v. IRS, 562 F.3d 1190 (DC. Cir. 2009) ..40 Mobil Oil Corp. v. EPA, 879 F.2d 698 (9th Cir. 1989) ..52 NLRB. v. Robbins Tire Rubber Co., 437 US. 214 (1978) ..35, 36 NLRB v. Sears, Roebuck Co., 421 US. 132 (1975) ..26, 28, 33 Nat ?l Sec. Archive v. CIA, 752 F.3d 460 (DC. Cir. 2014) ..52 Navasky v. CIA, 499 F. Supp. 269 (S.D.N.Y. 1980) ..44, 46 NY. Civil Liberties Union v. DHS, 771 F. Supp. 2d 289 (S.D.N.Y. 2011) New York Times v. DOJ, 756 F.3d 100 (2d Cir. 2014) ..49, 53 New York Times v. DOJ, 872 F. Supp. 2d 309 (S.D.N.Y. 20 Radcliffe v. IRS, 536 F. Supp. 2d 423 (S.D.N.Y. 2008) ..36 Renegotiation Bd. v. Grumman Aircraft Eng ?g Corp, 421 US. 168 (1975) ..25 In re Reserve Fund Secs. Derivative Litig., Nos. 09 09 Civ. 4346 (PGG), 2012 WL 4774834 (S.D.N.Y. Sept. 12, 2012) ..53 In re Sealed Case, 121 F.3d 729 (DC. Cir. 1997) ..52 In re Steinhardt Partners, LP, 9 F.3d 230 (2d Cir. 1993) ..53 Tigue v. DOJ, 312 F.3d 70 (2d Cir. 2002) ..25, 26, 33 United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998) ..33 United States v. Cunningham, 672 F.2d 1064 (2d Cir. 1982) ..51 Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 8 of 66 United States v. Wells Fargo Bank, NA, No. 12 7527 (IMF), 2015 WL 6395917 (S.D.N.Y. Oct. 22, 2015) ..52 United States v. Wilkerson, 361 F.3d 717 (2d Cir. 2004) ..47 Upjohn v. United States, 449 US. 383 (1981) ..30, 31, 51 In re Von Bulow, 828 F.2d 94 (2d Cir. 1987) ..52 Wilkinson v. FBI, 633 F. Supp. 336 (CD. Cal. 1986) ..47 Williams v. FBI, 730 F.2d 882 (2d Cir. 1984) 47 Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) .. passim Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009) Wilson v. DOJ, Civ. A. No. 87-2415-LFO, 1991 WL 111457 (D.D.C. June 13, 1991) ..45 Wolfv. CIA, 473 F.3d 370 (DC. Cir. 2007) Statutes, Rules Regulations 5 U.S.C. 552 .11 5 U.S.C. 552(b)(1) ..1, 11 5 U.S.C. 552(b)(6) ..2 5 U.S.C. 552(b)(7)(C) ..2 5 U.S.C. 552(b)(3) ..1, 22 5 U.S.C. 552(b)(5) 25 5 U.S.C. 552(b)(7)(A) ..2, 35 5 U.S.C. 552(b)(7)(E) ..1, 39 5 U.S.C. 552(b)(7) ..46, 47 18 U.S.C. 798 ..23 50 U.S.C. 3024(i)(1) ..22 iv Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 9 of 66 50 U.S.C. 3507 ..23 50 U.S.C. 3605 ..23, 25 Pub. L. No. 109?177 (Mar. 9, 2006) Pub. L. No. 107?56 (Oct. 26, 2001) ..5 Fed. R. Civ. P. Fed. R. Civ. P. 56(a) Other Federal References H.R. Rep. No. 89?1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423 ..9 HR. Rep. No. 89-1497, at 10 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2427 68 Fed. Reg. 15,315 (Mar. 25, 2003) ..45 75 Fed. Reg. 707 (Dec. 29, 2009) 1 Other Reference Kenneth W. Graham, Jr., Federal Practice Procedure, Federal Rules of Evidence 5729 (updated Apr. 2015) ..52 Case Document 39 Filed 12/11/15 Page 10 of 66 PRELIMINARY STATEMENT Defendant United States Department of Justice or the ?Government?), by its attorney, Preet Bharara, United States Attorney for the Southern District of New York, respectfully submits this memorandum of law in support of its cross-motion for summary judgment and in opposition to Plaintiffs? motion for summary judgment. Plaintiffs The New York Times Company and Charlie Savage (collectively, ?Plaintiffs? or ?the Times?) brought this action under the Freedom of Information Act 5 U.S.C. 552, seeking public disclosure of seven reports authored by the Of?ces of Inspectors General of the DOJ, National Security Agency Central Intelligence Agency Department of Defense, and Of?ce of the Director of National Intelligence (collectively, the Reports?), relating to various intelligence-gathering activities conducted by the United States Government. While the OIG Reports discuss some of the Government?s most sensitive intelligence and counter-terrorism activities, the Government has thoroughly reviewed, declassi?ed, and publicly disclosed very substantial portions of these reports, in light of a series of discretionary decisions made in the past several years to acknowledge and declassify information concerning certain intelligence and other counter-terrorism activities. The Times nevertheless continues to seek disclosure of protected material. As demonstrated by the Government?s unclassi?ed declarations, as well as the classi?ed declaration submitted for the Court?s ex parte review, the withholdings challenged by the Times (contained in excerpts ?led with their motion for summary judgment) are in fact properly protected from disclosure, in whole or in part, because they are currently and properly classi?ed, statutorily protected from disclosure, and/or privileged, and thus exempt under FOIA Exemptions 1, 3, and/or 5, 5 U.S.C. 552(b)(1), (3) and/or (5), or because they would reveal sensitive law enforcement techniques protected by Exemption 7E, 5 U.S.C. In addition, Case Document 39 Filed 12/11/15 Page 11 of 66 disclosure of certain limited information in the documents would interfere with pending law enforcement investigations, and thus is also protected under FOIA Exemption 7A, 5 U.S.C. Importantly, as Government declarants have avowed, and contrary to Plaintiffs? Speculation, the Government is not seeking to withhold information in the OIG Reports in order to conceal mistakes, illegality, or avoid embarrassment. Rather, the Government?s withholdings are consistent with the purposes set forth in the applicable FOIA exemptions. Much of the information that the Government continues to protect concerns properly classi?ed operational details relating to specific applications of the intelligence sources and methods used by the intelligence agencies in carrying out their intelligence and counter-terrorism missions. As discussed below, the Govemment?s declarants clearly and amply describe how exposure of this information is reasonably likely to risk exceptionally grave or serious damage to national security. These declarants also explain that certain related details concerning the agencies? activities and functions for which harm from public disclosure is presumed fall squarely within statutes mandating the protection of such information. The Government?s declarants also explain how public disclosure of certain redacted information would reveal privileged and sensitive internal Government deliberations and con?dential legal advice, and thus risk chilling 1 Certain information in the documents is also protected from disclosure under FOIA Exemptions 6, and/or 5 U.S.C. 552(b)(6), and/or Counsel for Plaintiffs has conferred with the Government and has con?rmed that Plaintiffs are not challenging the redactions taken by the Government pursuant to these FOIA exemptions. In addition, because Plaintiffs not challenged the adequacy of the Government?s searches for responsive documents, the Government does not address the searches? adequacy in this memorandum or its declarations. Further, because agency af?davits alone will support a grant of summary judgment in a FOIA case, consistent with the general practice in this Circuit, the Government has not submitted a Local Rule 56.1 statement. See, New York Times, 872 F. Supp. 2d 309, 314 (S.D.N.Y. 2012); see also Ferguson v. FBI, No. 89 Civ. 5071 (RPP), 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995) (noting ?the general rule in this Circuit?), 83 F.3d 41 (2d Cir. 1996). -2- Case Document 39 Filed 12/11/15 Page 12 of 66 candid and robust Executive branch debate on sensitive and dif?cult issues and inhibit the willingness of clients to seek legal advice from, and disclose con?dences to, their attorneys. In any event, the law is clear: whether any of this withheld information would reveal wrongdoing or errors is irrelevant to the FOIA analysis. So long as the Government has shown that a FOIA exemption applies and, with respect to Exemption 1, has not classi?ed information ?in order to? conceal illegality or error, or avoid embarrassment, see Executive Order 13526, the inquiry ends there, and the Court must grant judgment in favor of the Government. Contrary to the Times? argument, the Government has not waived the applicability of any of the asserted exemptions, either through of?cial disclosure or under any other waiver doctrine. To the extent the Times argues that certain material withheld pursuant to Exemptions 1 and 3 may not be redacted based on the Government?s prior disclosure of some information concerning the surveillance programs at issue, the Times misunderstands the of?cial disclosure doctrine, and the Government declarations clearly establish that none of the withheld information has been publicly disclosed and of?cially acknowledged. To the extent the Times suggests that the Government has waived the attorney-client privilege, deliberative process privilege, or work product doctrine with respect to certain information withheld pursuant to Exemption 5, it mistakenly con?ates the of?cial disclosure doctrine with waiver of privilege, and in any case fails to identify any prior disclosure of the legal advice or deliberations at issue. The Court should therefore grant the Government?s cross-motion for summary judgment, and deny the Times? motion for summary judgment. Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 13 of 66 FACTUAL BACKGROUND I. The OIG Reports This lawsuit concerns FOIA requests by the Times dated January 31, 2014, and February 18, 2014, seeking, respectively, a classi?ed report concerning the President?s Surveillance Program prepared by the Inspectors General of several agencies, and multiple DOJ Inspector General reports pertaining to various surveillance and data collection activities. The OIG Reports are listed below, along with a brief description of each.2 A. Of?ces of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Of?ce of the Director of National Intelligence, Report on the President?s Surveillance Program Volumes 1411, July 10, 2009 (?Joint Report?)3 In the aftermath of the terrorist attacks of September 11, 2001, on October 4, 2001, President George W. Bush issued a Top Secret authorization to the Secretary of Defense directing the NSA to conduct a classi?ed surveillance program to detect and prevent further 2 The publicly released versions of these reports are located at 3 The Joint IG Report on the President?s Surveillance Program comprises the following three volumes: 0 Volume I Joint Report of the Offices of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Of?ce of the Director of National Intelligence. 0 Volume II The Department of Defense Inspector General?s Review of the President?s Surveillance Program (pgs. 1-10); The Central Intelligence Agency Inspector General?s Review of CIA Participation in the President?s Surveillance Program (pgs. 11-44); The National Security Agency, Central Security Service Inspector General?s Review of the President?s Surveillance Program (pgs. 45-212); and The Office of the Director of National Intelligence Inspector General?s Review of the Participation of the ODNI in the President?s Surveillance Program (pgs. 213-233). I Volume A Review of the Department of Justice?s Involvement with the President?s Surveillance Program (pgs. l?407). -4- Case Document 39 Filed 12/11/15 Page 14 of 66 attacks in the United States. See Joint IG Report, Vol. I, at 1. The Presidential Authorization stated that an extraordinary emergency existed permitting the use of electronic surveillance within the United States for counter-terrorism purposes. (See Declaration of David M. Hardy, dated December 11, 2015, 1i 5). For more than ?ve years, the Presidential Authorization was renewed at 30- to 60?day intervals. This classi?ed program was referred to as the ?President?s Surveillance Program? or or (See Declaration of David J. Sherman, dated December 10, 2015, 11 9 n3). Subsequently, between July 2004 and January 2007, NSA ceased PSP collection activities under the Presidential Authorizations and transitioned certain of those activities to operate pursuant to separate court orders issued by the Foreign Intelligence Surveillance Court See Joint IG Report, Vol. I, at 1. Title of the Foreign Intelligence Surveillance Act Amendments of 2008 (the Amendments Act? or required the Inspectors General of relevant elements of the intelligence community to conduct a comprehensive review of the PSP. Id. at 1-2. The Joint IG Report is the product of that review. See id. at 2. The Joint IG Report, including its annexed individual reports, reviews the inception of the PSP, various aspects of its implementation, the legal reassessment of the PSP in 2003 and 2004, and the subsequent transition of the PSP to Foreign Intelligence Surveillance Act authority. B. Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Section 215 Orders for Business Records, March 2007 (?Section 215 Review Section 215 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001), allows the FBI to seek orders from the Foreign Intelligence Surveillance Court for ?any tangible things,? including books, records, and other items from any business, organization, or entity provided the item or items are used for an authorized ?investigation to protect against -5- Case Document 39 Filed 12/11/15 Page 15 of 66 international terrorism or clandestine intelligence? activity. The USA PATRIOT Improvement and Reauthorization Act of 2005 required the Department of Justice Of?ce of the Inspector General to conduct ?a comprehensive audit of the effectiveness and use, including any improper or illegal use? by the FBI of Section 215 of the PATRIOT Act, for two time periods: 2002-2004, and 2005-2006. Section 215 Review I, at i. This report addressed data from calendar years 2002-2006. C. Office of the Inspector General, Department of Justice, A Review of the Use of Section 215 Orders for Business Records in 2006, March 2008 (?Section 215 Review Pursuant to the USA PATRIOT Improvement and Reauthorization Act of 2005, see supra, this report examined the requests for Section 215 orders in calendar year 2006. Section 215 Review II, at l. D. Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008 September 2012 (?702 Report?) Section 702 of the FAA generally governs the acquisition of foreign intelligence information from or with the assistance of an electronic communications service provider by targeting non-United States persons reasonably believed to be located outside the United States. 702 Report at X. This report describes DOJ review of FBI activities under Section 702 of the FAA, speci?cally, the policies and procedures for conducting and targeting activities under Section 702 from September 2008 to early 2010. Id. E. Of?ce of the Inspector General, Department of Justice, A Review of the Use of National Security Letters, March 2007 Review Four federal statutes contain ?ve speci?c provisions authorizing the FBI to issue national security letters to obtain information from third parties, such as telephone companies, ?nancial institutions, Internet service providers, and consumer credit agencies. NSL Review I at -6- Case Document 39 Filed 12/11/15 Page 16 of 66 In these letters, the FBI can direct third parties to provide customer account information and transactional records, such as telephone toll billing records. Id. The USA PATRIOT Improvement and Reauthorization Act of 2005 required DOJ OIG to review ?the effectiveness and use, including any improper use, of national security letters issued by the Department of Justice.? See Pub. L. No. 109-177, 119. This report regarding use of NSLs covered calendar years 2003-2005. See NSL Review I at F. Of?ce of the Inspector General, Department of Justice, A Review of the Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006, March 2008 Review 11?) Pursuant to the USA PATRIOT Improvement and Reauthorization Act of 2005, see supra, this report covered the use of NSLs for calendar year 2006. NSL Review II at 1. G. Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Exigent Letters and Other Informal Requests for Telephone Records, January 2010 (?Exigent Letters Review?) In connection with its mandate under the USA PATRIOT Improvement and Reauthorization Act of 2005 to examine ?the effectiveness and use, including any improper use, of national security letters issued by the Department of Justice,? see supra, DOJ OIG investigated the use of exigent letters and other informal requests, instead of NSLs or other legal process, to obtain the production of non-content telephone records from employees of three communications service providers. Exigent Letters Review at 1. This report describes the results of that investigation. See id. 11. Procedural History of the FOIA Requests On February 10 and 21, 2014, DOJ denied the Times? requests for the OIG Reports on the grounds that they were classi?ed, but informed the Times that prior to having received the FOIA requests, it had requested that relevant agencies review the reports for declassi?cation. -7- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 17 of 66 (See Dkt. Nos. 31-2, 31-5). After ?ling administrative appeals (see Dkt. Nos. 31-3, 31-6), the Times ?led its complaint in this case on May 28, 2014 (see Dkt. No. 2). Upon the parties? consent, on August 28, 2014, the Court so-ordered a scheduling order governing the processing and production of the OIG Reports. (Dkt. No. 12). Pursuant to the Court?s scheduling order, as modi?ed on February 4, 2015, and April 17, 2015 (Dkt. Nos. 16, 18), the Government made ?ve voluminous productions beginning in October 2014 and concluding in September 2015, declassifying and publicly disclosing substantial portions of the reports. The Government processed and produced approximately 1900 pages of responsive records. On October 7, 2015, the Times moved for summary judgment, challenging the redactions taken by the Government under FOIA Exemptions approximately 26 places in the OIG Reports, comprising approximately 197 pages redacted in whole or in part. (See Plaintiffs? Memorandum of Law, Dkt. N0. 30 In opposition to the Times? motion and in support of its cross-motion for summary judgment, the Government is ?ling with this memorandum unclassi?ed declarations from Dr. David J. Sherman, Associate Director for Policy and Records at the NSA, dated December 10, 2015 (?Sherman Mary E. Wilson, Deputy Chief and Acting Information Review Of?cer for the Litigation Information Review Of?ce, dated December 4, 2015 (?Wilson Paul P. Colborn, Special Counsel in the Of?ce of Legal Counsel dated December 11, 2015 (?Colbom David M. Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division of the FBI, dated December 11, 2015 (?Hardy John Bradford Wiegmann, Deputy Assistant Attorney General in National Security Division dated December 11, 2015 (?Wiegmann Douglas R. -8- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 18 of 66 Hibbard, Senior Advisor of the Initial Request Staff of Of?ce of Information Policy dated December 11, 2015 (?Hibbard and the Government is also submitting a classi?ed declaration from Dr. David J. Sherman, dated December 10, 2015 (?Classi?ed Sherman These declarations describe, inter alia, the responsive information that has been withheld, the bases for its withholding, and why the applicable exemptions and privileges have not been waived by virtue of any prior disclosures of the Executive Branch. ARGUMENT I. GOVERNING FOIA STANDARDS FOIA represents a balance struck by Congress ??between the right of the public to know and the need of the Government to keep information in con?dence.? John Doe Agency v. John Doe Corp, 493 U.S. 146, 152 (1989) (quoting H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423). Thus, while OIA requires disclosure under certain circumstances, the statute recognizes ?that public disclosure is not always in the public interest,? Baldrige v. Shapiro, 455 U.S. 345, 352 (1982), and mandates that records need not be disclosed if ?the documents fall within [the statute?s] enumerated exemptions,? Dep?t of the Interior 12. Klamath Water Users Protective Ass 532 U.S. 1, 8 (2001)). Summary judgment is warranted if ?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). In a FOIA case, or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are suf?cient to sustain the agency?s burden.? Carney v. DOJ, 19 F.3d 807, 4 Because the classi?ed declaration contains information that cannot be disclosed on the public record, the Government is providing it for the Court?s review ex parte and in camera. -9- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 19 of 66 812 (2d Cir. 1994) (footnote omitted). The agencies? declarations in support of their determinations are ?accorded a presumption of good faith.? Id. (quotation marks omitted). 6 Agencies ?may invoke the exemptions independently and courts may uphold agency action under one exemption without considering the applicability of the other.?? Wilner v. NSA, 592 F.3d 60, 72 (2d Cir. 2009) (quoting Larson v. Dep?t ofState, 565 F.3d 857, 862-63 (DC. Cir. 2009)). Moreover, courts must accord ?substantial weight? to agencies? af?davits regarding national security. ACLU v. DOJ, 681 F.3d 61, 69 (2d Cir. 2012); Diamond v. FBI, 707 F.2d 75, 79 (2d Cir. 1983); Wolfv. CIA, 473 F.3d 370, 374 (DC. Cir. 2007). In FOIA cases involving matters of national security, ?the court is not to conduct a detailed inquiry to decide whether it agrees with the agency?s opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency.? Halperin v. CIA, 629 F.2d 144, 148 (DC. Cir. 1980); see also ACLU, 681 F.3d at 70-71 (?Recognizing the relative competencies of the executive and judiciary, we believe that it is bad law and bad policy to second-guess the predictive judgments made by the government?s intelligence agencies regarding whether disclosure of the [withheld information] would pose a threat to national security.?) (quoting Wilmer, 592 F.3d at 76) (quotation marks omitted)); Ctr. for Nat ?1 Sec. Studies v. DOJ, 331 F.3d 918, 927 (DC. Cir. 2003) (courts have ?consistently deferred to executive af?davits predicting harm to the national security, and have found it unwise to undertake searching judicial review?); Fragone v. CIA, 169 F.3d 772, 775 (DC. Cir. 1999) (?courts have little expertise in either international diplomacy or counterintelligence operations?). Rather, ?an agency?s justi?cation for invoking a FOIA exemption is suf?cient if it appears logical or plausible.? Wilner, 592 F.3d at 73; accordACLU, 681 F.3d at 69; Wolf, 473 F.3d at 374-75. -10- Case Document 39 Filed 12/11/15 Page 20 of 66 The Government is entitled to summary judgment as to the withheld documents and information, especially applying this deferential standard to the Government?s declarations concerning national security matters. The Government?s declarations amply demonstrate that it has properly withheld responsive records pursuant to FOIA Exemptions l, 3, 5, 7A, and 7E.5 II. THE WITHHELD DOCUMENTS AND INFORMATION ARE EXEMPT FROM DISCLOSURE UNDER FOIA6 A. The Government Has Properly Withheld Classi?ed Documents and Information Under Exemption 1 Exemption 1 exempts from public disclosure matters that are speci?cally 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 classi?ed pursuant to such Executive order.? 5 U.S.C. 552(b)(1). The current standard for classi?cation is set forth in EC. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). Section 1.1 of the Executive Order lists four requirements for the classi?cation of national security information: (1) an ?original classi?cation authority? must classify the information; (2) the information must be ?owned by, produced by or for, or is under the control of the United States Government,? (3) the information must fall within one or more of eight protected categories of information listed in section 1.4 of the and (4) an original 5 In addition, the Government intends to release additional information currently redacted on pages E-77-78, 81, 85, 93, 95, 100, 108, 206, 213, 216, 218, 225, 226, 264, 269, 271, and 346 of the OIG Reports to Plaintiffs shortly, and has released a portion of note 24 of page 122 (see E- 297) of Joint IG Report Vol. 2. In addition, the Government intends to release additional information from the Section 702 Report not challenged by Plaintiffs. The information contained in these redactions is thus not addressed in the Government?s declarations. 6 To assist the Court in resolving the issues presented in this case, the Government is also ?ling a chart that lists the challenged redactions, the agencies asserting FOIA exemptions over those redactions, and the exemptions asserted by each agency. This chart is attached as Exhibit 1 to the Declaration of Tara M. La Morte, dated December 11, 2015. -11- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 21 of 66 classi?cation 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.? E.O. 13526 The Government?s submissions amply demonstrate that these standards have been met with regard to the classi?ed information withheld by NSA, CIA, and FBI.7 As an initial matter, each agency has established that (1) an original classi?cation authority has classi?ed all of the withheld information at issue (Sherman Decl. 1111 2, 15; Wilson Decl. 3, 9; Hardy Decl. 2, 18); (2) the information is ?owned by, produced by or for, or is under the control of the United States Government? (Sherman Decl. 11 15; Wilson Decl. 11 10; Hardy Decl. 11 18); and (3) the withheld classi?ed information falls within one of the categories described in Section 1.4 of E0. 13526, speci?cally information pertaining to ?intelligence activities (including covert action), intelligence sources or methods, or information pertaining to ?foreign relations or foreign activities of the United States, including con?dential sources,? and/or information pertaining to ?vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to the national security.? (Sherman Decl. 14; Wilson Decl. ?l 11; Hardy Decl. 20, 25-27; Classi?ed Sherman Decl.). Finally, as further described below, each agency has logically and plausibly explained why the unauthorized disclosure of the Withheld information, which is classi?ed at the SECRET or TOP SECRET levels, could be expected to cause serious or exceptionally grave damage to the national security of the United States. 7 The FBI has withheld classi?ed information within each of the OIG Reports at issue in this case. NSA classi?ed information is at issue in the Joint IG Report and the 702 Report, while CIA classi?ed information is at issue only in the Joint IG Report. -12- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 22 of 66 1. Classified Information Properly Withheld by All Intelligence Agencies The Government properly asserted Exemption 1 in this case to protect common categories of classi?ed information withheld by all of the intelligence agencies with equities in the challenged portions of the OIG Reports NSA, CIA, and FBI as well as to protect classi?ed information unique to each agency. There are three common categories of classi?ed information withheld by the intelligence agencies under Exemption 1: the identities of the targets of the various collection programs discussed in the OIG Reports; (2) intelligence agency operational information; and (3) information associating surveillance activities of the NSA, the CIA, and/or the FBI with particular criminal cases and investigations. See, Wilmer, 592 F.3d at 69-70, 74-75 (upholding withholding of similar types of information). First, the intelligence agencies properly withheld information concerning the identities of the targets of the various collection programs discussed in the OIG Reports. (Sherman Decl. 9, 23-25; Wilson Decl. 21-22; Hardy Decl. 36, 47, 50, 52, 55, 59, 82).8 As the NSA explains, disclosing details concerning the identity of NSA targets would reveal the agency?s ability to gather information about these targets as well as valuable information concerning the scope and limits of the Government?s collection efforts. (Sherman Decl. 25; see also Wilson Decl. 22 (information regarding CIA interests and targets could allow identi?cation of speci?c collection methods and speci?c intelligence sources, and provide valuable information about CIA collection capabilities; Hardy Decl. 36, 55, Armed with this information, adversaries who know the various means by which they communicate could determine which 8 As Sherman eXplicitly notes, the NSA did not withhold the of?cially acknowledged fact that pursuant to the PSP the NSA intercepted certain international communications involving persons reasonably believed to be associated with Al Qaeda or af?liated terrorist groups. (Sherman Decl. ?l 23 -13- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 23 of 66 of their communications may have been surveilled and which may be ?safe.? (Sherman Decl. ?l 25; Wilson Decl. 11 22 (information would enable adversaries to ?exploit gaps in coverage?); Hardy Decl. 1] 36). And advised of their status as targets, targets and their associates are reasonably likely to take steps to circumvent collection that might be occurring under other programs. This, in turn, could result in a loss of valuable intelligence. (Sherman Decl. 1] 25; see also Wilson Decl. 11 22 (disclosure will reasonably be expected to cause targets and their associates to take protective measures to hide their activities); Hardy Decl. 1111 36, 82). Similarly, the intelligence agencies correctly protected under Exemption 1 information about investigations and criminal prosecutions that involved the use of information derived from signals intelligence collection. (Sherman Decl. 9, 50-52; Wilson Decl. 1H 21, 23; Hardy Decl. 50, 52). Contrary to the Times? argument (see Br. at 24-25), while some information about investigations and criminal prosecutions is generally public, revealing the connections between speci?c cases and speci?c types of surveillance activities connections that have never been of?cially acknowledged or disclosed - would alert particular defendants, and their associates, to their status as intelligence community targets (or persons of interest), would reveal other intelligence sources, and would expose the ability of the intelligence agencies to intercept speci?c types of communications. (Sherman Decl. 51, 52; Wilson Decl. 23, 27, 22; see also Hardy Decl. 50, 52). The reasonably expected national security harms arising from disclosing the targets or persons of interest of speci?c intelligence agency activities, discussed supra, also apply here. (See Sherman Decl. 1m 51, 52; Wilson Decl. 1m 23, 27; id. at 22; see also Hardy Decl. 36, 50). In addition, inasmuch as disclosing criminal case information in connection with PSP activities reveals the relevant time periods and types of communications collected, disclosure reasonably can be expected to cause others (including other targets) using -14- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 24 of 66 similar types of communications methods to alter their stagecraft, thus undermining ongoing intelligence collection efforts and risking loss of valuable intelligence information. (Sherman Decl. 11 52; Wilson Decl. ii 23 (hostile groups could learn the means and methods of CIA collection and use that to defeat collection efforts); Hardy Decl. 11 50). Third, the intelligence agencies correctly withheld classi?ed operational information. Speci?cally, the NSA withheld the technical means by which it collects and analyzes the communications of foreign targets, the speci?c methods by which the agency determines ?foreignness? of targets and selectors, and the scope and limitations of the agency?s collection capabilities. (Sherman Decl. 111] 30-37). Notably, this category of operational information applies across all of the programs discussed in the Joint IG and 702 Reports. (Id. 11 30). As the NSA explains, there are many reasons why exposing this information is reasonably likely to cause exceptionally grave national security harm. First, publicly disclosing the technical means by which the agency effects signals intelligence and the scope of its collection capabilities alerts our adversaries to the vulnerability or lack thereof of their communications. (Id. 32; see also Hardy Decl. ll 46). Once informed of technical speci?cs such as the particular sources from which the NSA can collect information, the types of data collected, and/or how data is analyzed, adversaries some of whom are extremely sophisticated in this type of tradecraft could assess the vulnerability of their communication methods and develop additional countermeasures to frustrate the Government?s ongoing collection efforts. (Sherman Decl. 11 32, 34). This remains true even with respect to the operational details of discontinued programs. (Id. 1i 33). Revealing operational abilities in that context still provides adversaries with unique insights into the agency?s capabilities and limitations, thus enabling them to more effectively insulate their current communications from collection. (Id. 33, 34). -15- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 25 of 66 Next, disclosing operational details concerning the types of facilities that NSA targeted under speci?c programs ?would reveal methodology for identifying speci?c facilities for collection, from which an adversary could extrapolate analytic process for identifying worldwide facilities? for signals intelligence collection. (Id. 35). Again, this information would enable adversaries to learn which forms of communication may be subject to collection, and informs them of which of their communications NSA did and did not collect, thereby exposing intelligence gaps. (Id. ll 35). Similarly, gaps or limitations in collection activities would also be exposed by revealing modi?cations in NSA surveillance, including the types of collections modi?ed and when they were modi?ed. (Id. 11 36). Finally, revealing how the NSA determines the foreignness of selectors and the procedures by which particular communications are targeted would allow adversaries to evade collection by posing as non- foreign or otherwise obfuscating their foreignness. (Id. 1T 37). Overall, NSA operational information is invaluable to our adversaries because it enables them to learn how to protect their future communications from US. surveillance. As the CIA explains, disclosing the CIA operational information contained in the Joint IG Report, which includes the limits of CIA collection in some cases, could reasonably be expected to alert adversaries to certain means of intelligence collection as well as to the scope and timing of important collection efforts. (Wilson Decl. 21, 24). Adversaries, knowing how they communicate amongst themselves, could use this information to learn of gaps in collection or coverage and take countermeasures in an effort to avoid future collection efforts and to uncover ongoing collection activities. (Id. 1i 24). Notably, the types of tools that the agency has previously used to collect and analyze information ?are still in use, and the intelligence obtained using those methods contributes to the current collection efforts.? (Id. ii 25). Thus, -16- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 26 of 66 disclosures of operational information that could identify past or current intelligence sources and methods would hamper the current ability to collect intelligence. Finally, the FBI withheld operational information revealing (1) its collection capabilities in connection with its role in implementing the PSP, both generally and in connection with a speci?cally-de?ned time-period (see Hardy Decl. 1m 35, 40); (2) nonpublic technical capabilities still utilized by the agency (see id. 1] 41); (3) the types of facilities analyzed by the FBI in national security investigations (see id. 11 72); (4) the types of information shared between the FBI and the intelligence community and the FBI and foreign entities (see id. 35, 48, 81, 84); (5) the technical operation of PRISM, a repository for counterterrorism and investigative data (see id 65-66); and (6) FBI Targeting Procedures (see id. 67). It is certainly ?logical and plausible? that release of any of this information could cause harm to national security. Wilmer, 592 F.3d at 73; accord ACLU, 681 F.3d at 69. As the FBI explains, disclosing technical information concerning the agency?s collection capabilities would enable adversaries to glean the scope and limits of those capabilities and devise ways to evade the collection efforts. (Id. 1111 35, 40). The same holds true with respect to public disclosure of other technical capabilities still utilized by the agency and the types of facilities analyzed by the agency in connection with national security investigations. It logically follows that disclosure of any of this information could reasonably be expected to enable adversaries to take additional measures to protect their communications and hide their activities from FBI scrutiny, leading to a loss of valuable intelligence. (Id 1111 41, 72). In addition, insofar as certain of this information exposes gaps in the intelligence activities and/or methods, disclosure would inform adversaries of which types of communications and activities are safe and which were potentially compromised. (Id. 1T 72). For example, disclosing the collection -17- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 27 of 66 capabilities within a speci?c period of time would provide adversaries with information from which they could assess whether their communications during that particular time period were subject to collection or were otherwise safe. (Id. 11 40). The adversaries? future plans can be adjusted accordingly. Revealing the type of information the FBI shares with the intelligence community and with foreign partners would similarly inform adversaries as to how information-sharing factors into the development and direction of an investigation. (Id. 35, 48). In addition, disclosure of this information could reasonably be expected to chill intelligence sharing to the detriment of our national security. (Id. 11 48). In some instances, it would also alert adversaries of the close working relationship with a speci?c foreign agency, thereby providing insight into the breadth and depth of an investigation, as well as what speci?c types of investigative tools might have been utilized. As a result, adversaries could develop more effective counter-surveillance techniques. Next, disclosure of operational details concerning PRISM an analytical tool utilized by the FBI to identify targets and analyze data collected by multiple intelligence agencies would provide valuable information regarding the analytical capabilities and how the FBI ?connects the dots? in an investigation. (Id. 65-68; see also id. 11 46 (protecting analytic technology to connect the dots between foreign and domestic subjects). None of these details has been previously disclosed. (Id. 1i 33). Finally, information concerning FBI Targeting Procedures is properly classi?ed. The FBI employs Targeting Procedures pursuant to Section 702 to target non-US. persons reasonably believed to be located outside the United States to acquire foreign intelligence information. Disclosing these procedures would allow targets to employ measures to make it -18- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 28 of 66 more dif?cult for the Government to ascertain whether or not they were an appropriate target. (Id. 11 67). 2. Additional Classi?ed Information Properly Withheld by NSA NSA also properly withheld three additional categories of classi?ed information from the Joint IG Report and the 702 Report: (1) information that could reveal the identities of communications service providers involved with any of the NSA collection programs discussed in the OIG Reports and their level of participation or non-participation in those programs (Sherman Decl. 42-45); (2) classi?ed details concerning the scope and timing of its PSP collection and its response to concerns about the program?s legality (id. 57-60); and (3) certain information addressed in the Classi?ed Sherman Declaration. Disclosing information pertaining to communications service providers and their level of involvement in the relevant programs would advise adversaries of which of their electronic communications may have been collected and prompt them to switch to a different provider. This, in turn, would result in the loss of valuable intelligence. (Id. ll 43). Likewise, advising adversaries of which of their communications may have evaded collection at particular times, by informing them of which provider(s)? records were (and thus which were not) acquired, would also provide them with valuable information concerning the Government?s knowledge (or lack thereof) of their activities. (Id. 1i 44). Indeed, as Sherman observes, Congress recognized the need to protect the identities and participation of telecommunications carriers in NSA programs when it enacted legislation barring lawsuits against carriers alleged to have assisted the NSA after the September 11 attacks, notwithstanding the Government?s of?cial acknowledgement of the PSP. (See id. ll 47 -19- Case Document 39 Filed 12/11/15 Page 29 of 66 As to details concerning the scope and timing of its PSP collection and its response to concerns about the program?s legality (id. 1111 57, 60), disclosure of how the scope of collection under the PSP changed over time in light of DOJ concerns would permit adversaries to glean which of their communications, if any, may have evaded NSA collection and querying altogether. (Id. 58-59). In other words, adversaries can deduce which information the NSA possessed at which times. (Id. {l 59). Finally, as Sherman explains, the justi?cation for withholding certain classi?ed information located at page 123 and surrounding pages of the Joint IG Report is addressed in his classi?ed declaration. (Sherman Decl. 1111 10, 69). 3. Additional Classified Information Properly Withheld by FBI The FBI also correctly withheld several additional categories of classi?ed information from each of the OIG Reports. First, the FBI properly withheld information concerning how particular investigative techniques namely Section 215 requests, NSLs, and Exigent Letters a are applied in practice, including (1) information qualitatively describing how these techniques were used in furtherance of speci?c national security investigations; and (2) and information concerning application of these techniques across multiple national security investigations. See, ACLU V. 681 F.3d 61 (upholding withholding of intelligence methods as applied, notwithstanding disclosure of general details about methods); New York Times v. DOJ, 872 F. Supp. 2d 309, 316 (S.D.N.Y. 2012) (same in connection with collection methods). Release of this information is reasonably likely to cause harm to national security. As the FBI explains, revealing details concerning how these techniques were actually applied in the development of speci?c national security investigations could reasonably be expected to provide adversaries with invaluable insight into the investigative processes and undermine the -20- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 30 of 66 effectiveness of the techniques as investigatory tools. (Hardy Decl. 62, 70, 83). Likewise, publicly disclosing how these techniques have been applied in the aggregate would enable targets and adversaries to more effectively insulate their activities from FBI scrutiny. For example, disclosing the types of records or information sought by Section 215 requests, NSLs, and Exigent Letters would allow adversaries to assess what types of records and channels of communication are of most value to the FBI, and what types of records and activities may be ?safe.? (Id. 1111 56, 60, 71, 83). Release of information regarding how frequently the FBI relies on these methods in conducting its national security adversaries would not only alert adversaries as to how valuable the method is to the FBI, but further allow them to ascertain the probability that their activities might have been subject to collection pursuant to those methods. (Id. 55, 73; see also id. 11 61). Second, the FBI also properly withheld under Exemption 1 information identifying speci?c FBI Field Of?ces: the Field Of?ces submitting Section 215 requests approved by the FISC in certain years (id. ll 57), and a Field Of?ce involved in a particular Exigent Letters investigation (id. 11 84). Disclosing the identities of Field Of?ces in these contexts would reveal, in the aggregate, where the FBI focuses it investigative efforts and alert adversaries as to where their communications would most likely be collected or intercepted. (Id. 11 57; see also id. ll 84). Third, references to speci?c FBI ?le names and operational units in the Joint IG Report are properly classi?ed. (Hardy Decl. ll 47). Disclosing this information would alert adversaries of certain facilities, activities, and occurrences that are of speci?c interest to the FBI. Finally, three FBI redactions that the Times speci?cally challenges as supposedly relating ?entirely to legal analysis or known historical and statistical information? (Br. at 26, 25) are discussed in detail below. As described in?a, part the Times? characterization is wrong; in -21- Case Document 39 Filed 12/11/15 Page 31 of 66 fact, the challenged redactions contain information relating to intelligence sources and methods, the disclosure of which is reasonably likely to cause harm to national security. B. The Government Has Properly Withheld Documents and Information Under Exemption3 The Government has also properly invoked Exemption 3, under which matters ?speci?cally exempted from disclosure? by certain statutes is exempt from disclosure under FOIA. 5 U.S.C. 552(b)(3). An Exemption 3 analysis is straightforward: the Court need only determine whether the claimed statute is an exemption statute under FOIA and whether the withheld material falls within its scope. CIA v. Sims, 471 US. 159, 167 (1985); Wilmer, 592 F.3d at 72. As the Second Circuit has explained, ?Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of speci?c documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute?s coverage.? Wilner, 592 F.3d at 72; see also ACLU, 681 F.3d at 72-73; Krikorian v. Dep ?t of State, 984 F.2d 461, 465 (DC. Cir. 1993). There are three primary exemption statutes at issue in this case. First, the NSA, CIA, and FBI have each properly invoked section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. 3024(i)(1), which mandates that ?[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.? This statute vests 6? the intelligence community with very broad authority to protect all sources of intelligence information from disclosure.? ACLU, 681 F.3d at 73 (quoting Sims, 471 US. at 168-69). 66G 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 de?nition that goes beyond the requirement that the information fall within the Agency?s mandate to conduct foreign -22- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 32 of 66 intelligence.?? Id. (quoting Sims, 471 U.S. at 169). Next, the NSA has invoked section 6 of the National Security Agency Act of 1959 Pub. L. No. 86-36, 50 U.S.C. 3605, which broadly provides that ?nothing in this [Act] or any other law . . . shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof . . . See Wilmer, 592 F.3d at 75 (discussing NSAA). Finally, the CIA has invoked section 6 of the Central Intelligence Agency Act of 1949 (the Act?), as amended, 50 U.S.C. 3507, which, similar to the NSAA, exempts the CIA from ?the provisions of any other law which require the . . . disclosure of the organization, functions, names, of?cial titles, salaries, or numbers of personnel employed by the Agency.?9 It is well settled that all of these statutes qualify as Exemption 3 statutes. See Wilmer, 592 F.3d at 72; ACLU, 681 F.3d at 72?73. The protection afforded by these statutes is absolute. Under Exemption 3, in conjunction with these statutes, the Government need not that there would be any harm to national security from disclosure, only that the withheld information falls Within the purview of the exemption statute. Wilmer, 592 F.3d at 72-73; ACLU, 681 F.3d at 72- 73; accord Larson, 565 F.3d at 868. The Government?s submissions in this case easily meet this standard. Much of the same information protected as classi?ed under Exemption 1 has also been properly withheld under Exemption 3. For example, revelation of information that would 9 The NSA has also invoked l8 U.S.C. 798, which criminalizes the unauthorized disclosure of classi?ed information ?concerning the communication intelligence activities of the United States,? among other things. The term ?communication intelligence? means the ?procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.? Id. The NSA has not invoked this statute to protect any information that is not also protected by either the National Security Act or the NSAA (see generally Sherman Decl.), and this statute is the only Exemption 3 statute in this case that pertains to classi?ed information. -23- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 33 of 66 identify targets of collection (Sherman Decl. 26-29; Wilson Decl. 1m 22, 26; Hardy Decl. 36, 47, 50, 52, 55, 59), operational and technical details (Sherman Decl. 38-41; Wilson Decl. 1111 24-26; Hardy Decl. 1111 35, 40, 41, 46, 48, 65-67, 72), the identities of communications service providers (Sherman Decl. 43 n.7, 46-49 47 the connections between certain intelligence collection programs and speci?c investigations and criminal litigation (Sherman Decl. 53-56; Wilson Decl. 1m 23, 26; Hardy Decl. 1M 50, 52), details regarding how the scope of collection under the PSP changed over time (Sherman Decl. 61-64), and how particular techniques are applied in practice (Hardy Decl. 47, 55, 56, 57, 60, 61, 62, 70, 71, 73), could reasonably be expected to reveal intelligence sources and methods, and/or the respective agency?s organization, functions, and activities, as detailed above and in the above- cited declarations. Accordingly, Exemption 3 provides a separate and independent basis for granting the agencies summary judgment with respect to the withholding of this information. 10 Additionally, NSA and CIA correctly withheld under Exemption 3 certain information that is not also protected by Exemption 1. Speci?cally, the NSA withheld from disclosure the names of internal agency of?ces and employees involved in the collection programs, as well as information about NSA processes and procedures for handling classi?ed information, including the number of individuals cleared to access PSP information. (Sherman Decl. 65-68). As NSA notes, it was responsible throughout the STELLARWIND program for processing program access requests and in part for determining who to process. (Id. 1] 68). This information squarely falls within section 6 0f the NSAA which, as noted above, broadly covers the ?organization or any function of the . . . or any information with respect to the activities thereof? as well as 10 The FBI formally invoked Exemption 3 at paragraphs 37the Hardy Declaration. -24- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 34 of 66 the ?names, titles, salaries, or numbers of persons employed? by the NSA. 50 U.S.C. 3605. Similarly, the CIA withheld the identities of internal components pursuant to section 6 of the CIA Act, which protects that agency?s organization and functions. (Wilson Decl. 1m 22, 26). C. The Government Has Properly Withheld Documents and Information Under ExemptionS Exemption 5 protects ?inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.? 5 U.S.C. 552(b)(5). ?By this language, Congress intended to incorporate into the FOIA all the normal civil discovery privileges.? Hopkins v. HUD, 929 F.2d 81, 84 (2d Cir. 1991); accord Renegotiation Bd. v. Grumman Aircraft Eng ?g Corp, 421 US. 168, 184 (1975). ?Stated simply, agency documents which would not be obtainable by a private litigant in an action against the agency under normal discovery rules attorney-client, work-product, executive privilege) are protected from disclosure under Exemption igue v. DOJ, 312 F.3d 70, 76 (2d Cir. 2002) (quotation marks omitted). 1. Deliberative Process Privilege In enacting Exemption 5, ?[o]ne privilege that Congress speci?cally had in mind was the ?deliberative process? or ?executive? privilege.? Hopkins, 929 F.2d at 84. An agency record must satisfy two criteria to qualify for the deliberative process privilege: it ?must be both ?predecisional? and ?deliberative.? Grand Cent. P?ship v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999); accord igue, 312 F.3d at 76-77; Hopkins, 929 F.2d at 84. A document is ?predecisional? when it is ?prepared in order to assist an agency decisionmaker in arriving at his decision.? Renegotiation Bd., 421 U.S. at 184 (quoted in igue, 312 F.3d at 80; Grand Cent. P?ship, 166 F.3d at 482; Hopkins, 929 F.2d at 84). While a document is predecisional if it ?precedes, in -25- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 35 of 66 temporal sequence, the ?decision? to which it relates,? Grand Cent. ?ship, 166 F.3d at 482, the Government need not ?identify a speci?c decision? made by the agency to establish the predecisional nature of a particular record. NLRB 12. Sears, Roebuck Co., 421 US. 132, 151 n.18 (1975); accord Tigue, 312 F.3d at 80. Rather, so long as the document ?was prepared to assist [agency] decisionmaking on a speci?c issue,? it is predecisional. igue, 312 F.3d at 80. document is ?deliberative when it is actually . . . related to the process by which policies are formulated.? Grand Cent. ?ship, 166 F.3d at 482 (quotation marks omitted; alteration in original). In determining whether a document is deliberative, courts inquire as to whether it ?formed an important, if not essential, link in [the agency?s] consultative process,?1d. at 483, whether it re?ects the opinions of the author rather than the policy of the agency, id; Hopkins, 929 F.2d at 84?85, and whether it might ?re?ect inaccurately upon or prematurely disclose the views of [the agency],? Grand Cent. P?ship, 166 .3d at 483. The privilege thus protects ?recommendations, draft documents, proposals, suggestions, and other subjective documents which re?ect the personal opinions of the writer rather than the policy of the agency.? Tigue, 312 F.3d at 80 (quotation marks omitted); Grand Cent. ?ship, 166 F.3d at 482. The deliberative process privilege extends to ?documents ?re?ecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated? Hopkins, 929 F.2d at 84-85 (quoting Sears, 421 US. at 150). Thus, the deliberative process privilege may protect even post-decisional documents to the extent they recount or re?ect pre-decisional deliberations. See, e. g, Judicial Watch v. DOJ, 800 F. Supp. 2d 202, 218 (D.D.C. 2011); CREW v. DOJ, 658 F. Supp. 2d 217, 234 (BBC. 2009). Legal advice, no less than other types of advisory opinions, ??ts exactly within the deliberative -26- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 36 of 66 process rationale for Exemption Brinton v. Dep?t of State, 636 F.2d 600, 604 (DC. Cir. 1980) The Government properly withheld privileged materials under Exemption 5 and the deliberative process privilege. All of the information withheld by OLC is protected by the deliberative process privilege because it would reveal predecisional legal advice and legal deliberations that were part of an executive branch deliberative process regarding the PSP. (Colborn Decl. 13, 15, 17). These communications were made in connection with the considerations of executive branch of?cials or the President?s Counsel to aid the President in deciding whether to authorize or reauthorize particular activities. (Id 11 15). The material is deliberative because it constitutes legal advice from OLC or OLC attorneys to executive branch decisionmakers for use in the deliberations over whether to authorize those activities, as well as the legal deliberations engaged in during the preparation of the advice, and because it re?ects the give-and-take and candor of an executive branch deliberative process. The limited factual material contained in the memoranda and oral advice is closely intertwined with the advice and analysis that the memoranda and advice conveyed. As the Colborn Declaration sets forth, compelled disclosure of this material would undermine the deliberative process of Government, by chilling the candid and frank communications necessary for effective decisionmaking. (See id); see also Hopkins, 929 F.2d at 84 (privilege ?protects the decisionmakng processes of the executive branch in order to safeguard the quality and integrity of governmental decisions?); accord H.R. Rep. No. 89-1497, at 10 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2427 full and frank exchange of opinions would be impossible if all internal communications were made public,? and ?advice . . . and the exchange of ideas among agency personnel would not be completely frank if they were forced to -27- Case Document 39 Filed 12/11/15 Page 37 of 66 ?operate in a fishbowl? Klamath, 532 US. at 8?9 (?of?cials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news?); Sears, 421 US. at 150?51 (?those who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the decision making process? (quotation marks omitted; alteration in original)). As noted in the Colborn Declaration, attorneys at OLC are often asked to provide advice and analysis with respect to very dif?cult and unsettled questions of law, and on matters that can be quite controversial, and it is essential to the President in carrying out his mission and to the proper functioning of the executive branch that legal advice not be inhibited by concerns about the risk of public disclosure. (Colborn Decl. 1] 15). Protecting the confidentiality of legal advice and legal deliberations provided in the context of presidential or other executive branch deliberations is essential both to ensure that creative and sometimes controversial legal arguments and theories be examined candidly, effectively, and in writing, and to ensure that the President, his advisers, and other executive branch officials continue to request and rely on frank legal advice from OLC on sensitive matters. If the con?dentiality of such advice is readily breached, the President and other executive branch of?cials will be reluctant to continue to request and rely on legal advice from OLC on sensitive matters?which would undermine the public?s interest in an executive branch that strives to abide by the rule of law. (Id. 11 18). To the agency?s knowledge, none of the material withheld by OLC has been publicly disclosed. (See id. 11 21). The information withheld by the FBI pursuant to Exemption 5 based on the deliberative process privilege consists of material that contains or was prepared in connection with the formulation of policies concerning FBI subpoenas of telephone records. (Hardy Decl. 1i 91). The information withheld includes discussions between FBI counsel and various operational -28- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 38 of 66 divisions concerning draft FBI policies and manuals. The discussions concerned the FBI National Security Branch?s need for guidance regarding particular investigative techniques and associated legal authorities. This withheld material is pre-decisional because the discussions preceded ?nal decisions as to the adoption of particular FBI policies and manuals. The information is deliberative because the discussions represent ongoing deliberations by FBI counsel and other personnel regarding the authorization of particular techniques. None of this material withheld based on the deliberative process privilege has been publicly disclosed. The information withheld by NSD under Exemption 5 based on the deliberative process privilege consists of portions of the Joint IG Report describing the views and recommendations of a DOJ attorney as part of a process to assist the Government?s decision-making with respect to discovery issues raised by the STELLARWIND surveillance program. (See Wiegmann Decl. fl 15). These materials are predecisional because the memorandum they describe preceded a ?nal decision regarding the Government?s ultimate position on those discovery issues. (See id). They are deliberative because they re?ect ongoing deliberations regarding how the issues should be addressed. (See id). The views and recommendations at issue were part of the exchange of ideas and suggestions that accompanies careful and reasoned decision-making. As with the OLC and FBI materials discussed above, disclosure of such information would have an inhibiting effect upon agency decision-making and the development of policy because it would chill full and frank discussions between agency personnel and decision-makers regarding the decision at issue. (See id ii 13). None of this information has been publicly disclosed. (Id 1[ 15). -29- Case Document 39 Filed 12/11/15 Page 39 of 66 OIP also properly withheld material pursuant to Exemption 5 and the deliberative process privilege. The material withheld by OIP in the Joint IG Report re?ects legal analysis and internal executive branch legal deliberations between DOJ and the White House, related to the PSP. (Hibbard Decl. 1] 4). First, OIP withheld a description of an analysis, by the Attorney General to the Counsel to the President, regarding a statement in the March 11, 2004, authorization of the PSP. (See id 11 5). This material is deliberative because it expresses the opinion and analysis of the Attorney General to the White House Counsel. (Id. 1] 10). The material is pre-decisional because the opinions were expressed prior to a ?nal decision being made. (Id) Second, OIP withheld material that reveals the content of written and/or oral analysis and opinions from DOJ attorneys to the White House Counsel regarding the PSP. (Id 1] 6). This material is deliberative because it demonstrates DOJ concerns and conclusions about the PSP that were expressed to the White House. (Id. ll 11). This material is pre-decisional because the concerns were expressed prior to a ?nal decision being made. (Id) To the agency?s knowledge, the material withheld by OIP has never been publicly disclosed. (See id. ll 13). 2. Attorney-Client Privilege ?The attorney-client privilege protects con?dential communications between client and counsel made for the purpose of obtaining or providing legal assistance. Its purpose is to encourage attorneys and their clients to communicate fully and frankly and thereby to promote ??broader public interests in the observance of law and administration of justice.? In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007) (quoting Upjohn v. United States, 449 US. 383, 389 (1981)). The privilege operates in the Government context as it does between private attorneys and their clients, ?protect[ing] most con?dential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance.? Id. To -30- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 40 of 66 invoke the attorney-client privilege, a party must demonstrate that there was: a communication between client and counsel that (2) was intended to be and was in fact kept con?dential, and (3) was made for the purpose of obtaining or providing legal advice.? Id. at 419. The materials withheld by the Government under the attorney-client privilege easily meet this standard. First, all of the information withheld by OLC is protected by the attorney-client privilege. As described above, this information consists of legal advice from OLC attorneys regarding the PSP. As set forth in the Colborn Declaration, the legal advice from OLC attorneys was requested by the Counsel to the President and other executive branch of?cials, and the advice was communicated in con?dence by OLC attorneys to those clients, both orally and in writing. (Colborn Decl. 13, 16-17). The communications were intended to be, and were in fact kept, con?dential. (Id. 11 16). Having been asked to provide legal advice, OLC attorneys stood in a special relationship of trust with the President and his Counsel, and with the other clients seeking legal advice. Compelled disclosure of such material would have adverse consequences for the attomey-client relationship. Just as disclosure of client con?dences in the course of seeking legal advice would seriously disrupt the relationship of trust so critical when attorneys formulate legal advice to their clients, so too would disclosure of the legal advice itself undermine that trust. If the con?dentiality of such advice is readily breached, the President and other executive branch of?cials will be reluctant to continue to request and rely on legal advice from OLC on sensitive matters?which as noted above would undermine the public?s interest in an executive branch that seeks to abide by the rule of law. (Id. 16, 18); see Cnty. of Erie, 473 F.3d at 419. -31- Case Document 39 Filed 12/11/15 Page 41 of 66 Second, the FBI properly withheld information under Exemption 5 based on the attorney? client privilege. The material withheld by the FBI based on the attorney-client privilege consists of communications between a client?the FBI, via its Special Agents?and agency attorneys that include analysis by agency counsel undertaken for the purpose of formulating the agency?s legal position and that provided legal guidance to Special Agents in reference to telephone subpoenas requested by the FBI. (Hardy Decl. ll 89). These communications were intended to be, and in fact were, kept con?dential. Disclosure of their contents would impede FBI attorneys from freely providing information and legal guidance to different divisions within the FBI. Furthermore, public release of this material would impede effective agency decision-making, by chilling communication between Special Agents and FBI counsel. (Id 11 90). If such communciations may be made public, Special Agents may be less likely to offer unfettered points of view to their agency counsel, and agency counsel may be less likely to offer candid advice to their client. Third, information withheld by NSD is protected by the attorney-client privilege. Most of the material withheld by NSD consists of legal advice in a memorandum prepared by a DOJ Attorney for an Assistant Attorney General who represented the client, the United States. (Wiegmann Decl. 1i 7). The withheld materials re?ect the attomey?s views on questions of law regarding discovery issues related to the STELLARWIND program. These views were sought a decision-maker for the Government to obtain legal advice on those questions of law, and indeed re?ect such advice. Furthermore, this advice was intended to be, and was in fact, kept con?dential. NSD also withheld, pursuant to Exemption 5 and the attorney- client privilege, a portion of footnote 422 on page 346 of the Joint IG Report. (Id ll 8). The portion of the footnote withheld, if released, would reveal con?dential legal advice provided by a -32- Case Document 39 Filed 12/11/15 Page 42 of 66 DOJ attorney to his client, another Government entity, regarding discovery issues in criminal cases. (Id) Accordingly, NSD also properly withheld information pursuant to Exemption 5 and the attorney-client privilege. 3. Work Product Doctrine Exemption 5 also encompasses the work product doctrine. See Sears, 421 US. at 154- 55; Tigue, 312 F.3d at 76. The work product doctrine, sometimes referred to as the work product privilege, protects documents ?prepared in anticipation of litigation or for trial by or for another party or its representative,? as well as ?mental impressions, conclusions, opinions, or legal theories of a party?s attorney or other representative concerning the litigation.? Fed. R. Civ. P. accord A. Michael?s Piano, Inc. v. FTC, 18 F.3d 138, 146 (2d Cir. 1994). Without such protection, an entity would have to choose between ?scrimp[ing] on candor and completeness? or disclosing its ?assessment of its and weaknesses .. . to litigation adversaries.? United States v. Adlman, 134 F.3d 1194, 1200 (2d Cir. 1998). There is no requirement that litigation exist at the time a protected document is created; documents created in reasonable anticipation of future litigation may constitute work product. See, id. at 1199- 1200 (offering examples of protected work product). NSD properly withheld information under Exemption 5 based on the work product doctrine. Most of the material withheld by NSD pursuant to the work product doctrine discusses a memorandum drafted by a DOJ attorney in reasonable anticipation of litigation. (Wiegmann Decl. 11 10). That memorandum address discovery issues that had arisen from the Stellar Wind surveillance program, and it was prepared because these discovery issues were expected to arise again in then pending criminal prosecutions. The memorandum sets out the attorney?s conclusions, opinions, and legal theories on this issue. The withheld portions of the report, -33- Case Document 39 Filed 12/11/15 Page 43 of 66 which reveal the content of the memorandum, thus are protected by the work product doctrine. NSD also withheld, pursuant to Exemption 5 and the work product doctrine, a portion of footnote 422 on page 346 of Volume of the Joint IG Report that discusses a DOJ attomey?s recommendation on how to best comply with the Government?s discovery obligations in pending criminal prosecutions. (Id. ll 11). The attomey?s recommendation re?ects certain of the attorney?s mental impressions, opinions, and conclusions regarding the Govemment?s discovery obligations in those cases and thus is also protected by the work product doctrine. Finally, NSD properly withheld, pursuant to Exemption 5 and the work product doctrine, portions of the report that reveal the mental impressions and conclusions of a DOJ attorney regarding discovery issues pertaining to pending criminal litigation. (Id. 1] 12). D. The Government Has Properly Withheld Information Under Exemptions and The FBI properly withheld information under Exemptions and Exemption 7 protects from disclosure ?records or information compiled for law enforcement purposes? where disclosure would result in one of six enumerated harms, set forth in 5 U.S.C. As a threshold matter, the information withheld by the FBI under Exemptions and was plainly compiled for ?law enforcement purposes.? To show that information is ?compiled for law enforcement purposes,? the Government need only demonstrate a ?nexus between the agency?s activity . . . and its law enforcement duties.? Keys v. DOJ, 830 F.2d 337, 340 (DC. Cir. 1987). The Second Circuit has held that ?all records of investigations compiled by the FBI are for law enforcement purposes.? Halpem v. FBI, 181 F.3d 279, 296 (2d Cir. 1999). Here, the pertinent information was plainly compiled in furtherance of the law enforcement, national security, and intelligence missions. (See Hardy Decl. 11 93). As set forth in the Hardy Declaration, the inherent tasks and operational functions of these missions include -34- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 44 of 66 the identi?cation of, development, and implementation of law enforcement and intelligence gathering methods, techniques, procedures, and guidelines. Speci?cally, the information in the 01G reports withheld by the FBI under Exemptions and was used by the FBI to develop, implement, and/or improve the law enforcement initiative in furtherance of its mission. (See Furthermore, the speci?c information withheld by the FBI pursuant to Exemption 7 consists of material compiled in connection with FBI law enforcement and national security investigations. Accordingly, all information withheld pursuant to Exemptions and meets the Exemption 7 threshold, and indeed the Times does not appear to dispute this. 1. The Government Properly Withheld Information Under Exemption Exemption protects from disclosure ?records or information compiled for law enforcement purposes? whenever ?the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings.? 5 U.S.C. In enacting Exemption ?Congress recognized that law enforcement agencies had legitimate needs to keep certain records con?dential, lest the agencies be hindered in their investigations.? NLRB v. Robbins Tire Rubber Co., 437 US. 214, 224 (1978). Most importantly, Congress sought ?to prevent harm to the Government?s case in court? by preventing litigants from obtaining ?earlier or greater access to agency investigatory ?les than they would otherwise have.? Id. (quotation marks omitted). ?To ?t within Exemption the government must show that (I) a law enforcement proceeding is pending or prospective and (2) release of the information could reasonably be expected to cause some articulable harm.? Amnesty 1m"! USA v. CIA, 728 F. Supp. 2d 479, 525 (S.D.N.Y. 2010) (quotation marks omitted). With respect to the requirement of showing a ?pending or prospective? law enforcement -35- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 45 of 66 proceeding, courts have concluded that ?it is suf?cient that the government?s ongoing . . . terrorism investigation is likely to lead to such proceedings.? Azmy Supp. 2d 590, 605 (S.D.N.Y. 2008) (quotation marks omitted); see also Ctr. for Nat?l Sec. Studies, 331 F.3d at 926. Moreover, in order to demonstrate that disclosure of the requested documents could reasonably be expected to cause articulable harm, ?the government is not required to make a speci?c factual showing with respect to each withheld document.? Radcliffe v. IRS, 536 F. Supp. 2d 423, 437 (S.D.N.Y.. 2008) (internal citation omitted), 328 F. App?x 699 (2d Cir. 2009). In fact, in NLRB v. Robbins Tire Rubber Ca, the Supreme Court reversed the Fifth Circuit?s holding that ?Exemption was to be available only where there was a specific evidentiary showing of the possibility of actual interference in an individual case.? 437 US. at 218. The Supreme Court concluded that courts should instead consider the ?particular kinds of investigatory records? at issue and the potential for disclosure of such records to ?generally ?interfere with enforcement proceedings.? Id. at 236 (emphasis added). Thus, ?federal courts may make generic determinations that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally interfere with enforcement proceedings.? Radcliffe, 536 F. Supp. 2d at 437 (internal citation omitted). In fact, to satisfy the Government?s burden, the agency?s declaration need only ?allow[] the court to trace a rational link between the nature of the document and the alleged likely interference.? Ctr. for Nat ?l Sec. Studies, 331 F.3d at 940 (quotation marks omitted). Where, as here, national security matters are at issue, the executive?s invocation of Exemption is owed the same deference as its invocation of Exemptions and 3. See id. at 927-28. -36- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 46 of 66 The FBI asserted Exemption to protect names and other information pertaining to a pending FBI investigation likely to result in enforcement proceedings. (Hardy Decl. 1l 96). As explained in the Hardy Declaration, the release of speci?c subjects and their associates and other speci?c information regarding an ongoing FBI investigation could reasonably be expected to result not only in the acknowledgment of the existence of the investigation, but also in the identi?cation of suspects, thus jeopardizing the investigation and interfering with potential law enforcement proceedings. Speci?cally, information redacted pursuant to Exemption includes information from the Exigent Letters Report that, if released, could reasonably be expected to disclose an ongoing counterterrorism investigation involving a foreign government which is still active and which has not been publicly revealed. (Id 1] 97). Disclosure of the redacted information would enable the public to determine the existence and nature of the active investigation. Disclosure of such detail could reasonably be expected to interfere with the investigation. First, public disclosure of the existence and nature of the investigation would alert the subjects and their associates of the investigation and their status as FBI subjects. This could reasonably be expected to cause them to take measures to evade FBI scrutiny and destroy evidence. Second, because the FBI is conducting this investigation in coordination with a foreign government, revelation of the existence of the speci?c investigation could reasonably be expected to chill the relationship with this foreign law enforcement entity, which, in turn, could reasonably be expected to undermine the investigation. (See id). Finally, several of the redactions taken pursuant to Exemption include a description of speci?c FBI techniques as applied to the investigation, along with the results of the application of those techniques. Public disclosure of these details would alert targets of investigation and their associates of -37- Case Document 39 Filed 12/11/15 Page 47 of 66 certain relevant evidence that the FBI possesses about them. (Id) Disclosure of the redacted information could thus reasonably be expected to interfere with potential enforcement proceedings, either in the United States or abroad and the information was properly withheld pursuant to Exemption See, Dillon v. DOJ, F. Supp. 3d 2015 WL 1969840, at *11 (D.D.C. 2015) (concluding that agency properly withheld, pursuant to Exemption information that was shared between the FBI and foreign governments that would, inter alia, ?identify the and the foreign government agencies? investigative interest in particular individuals[,] reveal the scope and focus of the investigation identify and tip off individuals of interest to law enforcement[,] and provide suspects or targets the opportunity to destroy evidence and/or later their behavior to avoid detection? (alterations in original) (quotation marks omitted)); Council on Am.-Islamic Relations, Cal. v. FBI, 749 F. Supp. 2d 1104, 1118-19 (S.D. Cal. 2010) (?nding proper the government?s withholding, pursuant to Exemption of information that the FBI determined would enable ?the identi?cation of targets, sources, scope of investigations, and investigative strategies? related to ongoing investigations). 2. The Government Properly Withheld Information Under Exemption The FBI also properly withheld information under Exemption Exemption exempts from disclosure ?records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.? 5 U.S.C. -38- Case Document 39 Filed 12/11/15 Page 48 of 66 The ?rst category of records and information protected by Exemption that ?would disclose techniques and procedures for law enforcement investigations or prosecutions?rconsists of records and information that would disclose law enforcement techniques or procedures that are ?not generally known to the public.? Doherty v. DOJ, 775 F.2d 49, 52 n.4 (2d Cir. 1985); see Bishop v. DHS, 45 F. Supp. 3d 380, 391 (S.D.N.Y. 2014). However, ?an agency does not have to release all details concerning law enforcement techniques just because some aspects of them are known to the public.? ACLU v. DOJ, No. 12 Civ. 7412 (WHP), 2014 WL 956303, at *7 (S.D.N.Y. Mar. 11, 2014). Exemption will apply even to law enforcement techniques that are generally known where ?the manner and circumstances of the techniques are not generally known, or the disclosure of additional details could reduce their effectiveness.? Chivers v. DHS, 45 F. Supp. 3d 380, 391 (S.D.N.Y. 2014) (quotation marks omitted); accord N.Y. Civ. Liberties Union v. DHS, 771 F. Supp. 2d 289, 292-93 (S.D.N.Y. 2011). Information that would disclose techniques or procedures for law enforcement investigations or prosecutions is categorically exempt from disclosure under 5 U.S.C. no further showing of harm is necessary for the exemption to apply. See Allard K. Lowenstein Int?l Human Rights Project v. DHS, 626 F.3d 678, 681 (2d Cir. 2010). The second category of information and records protected by Exemption that would disclose ?guidelines for law enforcement investigations or prosecutions??may be withheld if disclosure ?could reasonably be expected to risk circumvention of the law.? 5 U.S.C. see Allard K. Lowenstein Int 7 Human Rights Project, 626 F.3d at 681. This standard ?sets a relatively low bar for the agency to justify withholding.? Blackwell v. FBI, 646 F.3d 37, 42 (DC. Cir. 2011). To Show that disclosure ?could reasonably be expected to risk circumvention of the law,? an agency does not have ?a highly speci?c burden of showing how -39- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 49 of 66 the law will be circumvented,? but only must ?demonstrate logically how the release of the requested information might create a risk of circumvention of the law.? Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (DC. Cir. 2009) (quotation marks and alterations omitted). The FBI withheld a variety of information regarding non-public law enforcement techniques and procedures, and non-public details regarding law enforcement techniques and procedures, pursuant to Exemption Most of the information withheld by the FBI pursuant to Exemption was also withheld pursuant to Exemption 1. (Hardy Decl. 1i 110). The classi?ed information regarding law enforcement techniques and procedures is discussed supra at pages 13-15, l7-18,and 20?21. Because this classi?ed information would reveal non-public details of law enforcement techniques and procedures employed by the FBI, it is categorically exempt from disclosure. See Allard K. Lowenstein Int Human Rights Project, 626 F.3d at 681. As discussed supra in part ILA, however, a number of harms could reasonably be expected to ?ow from release of such information, and disclosure could reasonably be expected to allow FBI subjects and their associates to circumvent the law. (See Hardy Decl. 35-69, 81-85). The FBI also withheld a limited amount of unclassi?ed information pursuant to Exemption (Id. ll 111). If disclosed, this information would reveal several categories of non-public information regarding techniques and procedures used by the FBI in criminal and national security investigations. First, the FBI withheld information regarding statistics related to U.S. Persons and Non- U.S. Persons named as subjects or otherwise affected by Section 215 applications in the years 11 Information was withheld pursuant to Exemption only, or, in one case, pursuant to Exemption only in conjunction with Exemption on the following pages: E-117, 125, 126, 128, 129, 159, 169, 170 (in conjunction with and 226. (Hardy Decl. ?l 111 n. 17). -40- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 50 of 66 OIG was tasked to examine. Second, the FBI withheld, in a table titled ?Types of Records Requested in Pure Section 215 Applications Processed in 2006 and Approved by the FISA Court,? information regarding types of records requested and number of approved applications. Third, the FBI withheld, in a table titled ?Types of Records Requested in Pure Section 215 Applications Processed in 2006 and ?Withdrawn,? types of records requested and number of withdrawn applications. Fourth, the FBI withheld, in a table titled ?Types of Records Requested in Pure Section 215 Orders,? types of records requested and number of requests for the years that OIG was tasked to examine. Releasing the preceding information would disclose how and from where the FBI collects information by way of Section 215 Orders, and the methodologies used to analyze the information. While the use of Section 215 Orders is publicly known, the precise number of applications for such orders, the types of applications that were approved and withdrawn, and the number of requests are not known. (See id). Releasing information regarding specific applications, the types of applications, whether they were approved or withdrawn, and the number of requests would highlight the activities, facts, or occurrences that are particular interest to the FBI in national security investigations. Publically disclosing this information would inform FBI subjects and associates of the kinds of information the FBI is interested in capturing and would afford them the opportunity to employ countermeasures to circumvent detection. Fifth, the FBI withheld the number of Field Of?ces that applied for Section 215 orders approved in calendar years 2004 and 2005. Release of such information would disclose information pertaining to the number of active investigations and how the FBI focuses its investigative efforts. Disclosure of this information would also shed light on the effectiveness of this investigative tool during speci?c years. -41- Case Document 39 Filed 12/11/15 Page 51 of 66 Sixth, the FBI withheld operational details pertaining to procedures by which certain types of communications were targeted. Release of such information would provide FBI subjects and associates a unique insight into operational tempo and what information is of operational signi?cance to the FBI. With such insight into the procedures by which certain types of communications were targeted, FBI subjects and associates could attempt to mask their facilities or identities from the FBI in an attempt to thwart detection. They could begin ?dropping? facilities and using alternative methods of communications that may not be known to the FBI. Seventh, the FBI withheld the identities of the FBI Field Of?ce and US. Attorney?s Of?ce that have program management responsibility for a particular ongoing investigation. Release of this information could allow a potential criminal to piece together seemingly random bits of information to form a mosaic as to how the FBI assigns and directs resources to speci?c Field Of?ces. If FBI targets and associates know where national security resources are directed, they may alter their activities or move their operational planning to areas that may not have as many resources, or have lower incidents of arrest and prosecution, thereby allowing them to thwart detection. Eighth, pursuant to in conjunction with the FBI withheld information regarding the use of a particular investigative technique in an ongoing investigation. Release of this information would alert potential criminals to techniques employed by the FBI in a particular context, risking circumvention of that technique. (Id) Ninth, the FBI withheld information that would disclose the scope of the implementation of a particular method in national security investigations. While the method is public, the details of its implementation are not. Release of the redacted -42- Case Document 39 Filed 12/11/15 Page 52 of 66 information might alert terrorists or other criminals to gaps or loopholes in the implementation of the investigative technique and allow them to thwart surveillance. Accordingly, the FBI properly withheld information pursuant to Exemption See, Labow v. DOJ, 66 F. Supp. 3d 104, 127?28 (D.D.C. 2014) (concluding that government was entitled to summary judgment for its use of Exemption where the information withheld consisted of ?non-public details about when, how, and under what circumstances the FBI conducts surveillance? (quotation marks omitted)); Council on Am.-Islamic Relations, 749 F. Supp. 2d at 1123 (?nding that FBI properly withheld, pursuant to Exemption documents that would disclose, inter alia, ?information pertaining to the location and identity of investigative units? and ?information pertaining to the dates and types of investigations and the basis for initiating the investigations?). NONE OF ARGUMENTS UNDERMINE THE APPLICABILITY OF THE INVOKED FOIA EXEMPTIONS A. Plaintiffs? Argument That FOIA Exemptions Cannot Protect Information Indicating Agency Wrongdoing Is Foreclosed by Second Circuit and Other Precedent l. Exemptions 1, 3, and May Properly Protect Information That Would Reveal Wrongdoing, Mistakes or Illegality Plaintiffs argue that under the plain terms of Executive Order 13526 (governing classi?cation) it is ?impossible to square the invocation of Exemption 1 with actions that are unlawful.? (Br. at 18). Similarly they argue that Exemption 3 ?is ill-served if it could be used to shield activities that the Government itself deems to be violations of the law.? (Id. at 19; see also id. at 20 (Exemption To the extent Plaintiffs are arguing that FOIA exemptions cannot protect information that would reveal wrongdoing, mistakes, or illegality, they are wrong. '2 12 In addressing the Times? arguments, the Government is not admitting to the illegality of any of the programs reviewed in the Inspectors General reports at issue. But as the Government?s -43- Case Document 39 Filed 12/11/15 Page 53 of 66 Courts have consistently rejected the argument that the alleged illegality of a classi?ed intelligence method or activity precludes application of Exemption 1. In ACLU v. Department of Defense, the DC. Circuit noted that ?there is no legal support for the conclusion that illegal activities cannot produce classi?ed documents.? 628 F.3d at 622. The court concluded that the alleged illegality of the techniques at issue there did not ?diminish the government?s otherwise valid authority to classify information about those techniques and conditions and to withhold it from disclosure? under Exemption 1. Id; see also Lesar v. DOJ, 636 F.2d 472, 483 (DC. Cir. 1980) (recognizing that documents concerning FBI surveillance activities could contain properly classi?ed information even if those activities ?strayed beyond the bounds? of the ?lawful security aim?); Amnesty Int 728 F. Supp. 2d at 510 fact that . . . interrogation methods may now be considered illegal does not mean that the information cannot be withheld pursuant to Exemption Agee v. CIA, 524 F. Supp. 1290, 1292 (D.D.C. 1981) (holding CIA sources and methods protected, notwithstanding ?the legality or illegality of conduct?); Navasky v. CIA, 499 F. Supp. 269, 275 (S.D.N.Y. 1980) (claim of ultra vires activities ?has no relevance? to the issue of whether a document is properly classi?ed and thus protected under Exemption Bennett v. DOD, 419 F. Supp. 663, 666 (S.D.N.Y. 1976) (same). Plaintiffs cite section 1.7(a) of Executive Order 13526, which bars the Government from classifying information ?in order to? conceal violations of law, (Br. at 17), but they misperceive the import of that provision. Section which contains the only relevant inquiry with respect to the classi?cation of information concerning illegal activity, prohibits classi?cation of information concerning illegal activity where such classi?cation is motivated by an agency?s argument makes clear, even assuming, arguendo, that any of the activities were determined to be unlawful, they are still properly exempt under the asserted FOIA exemptions. -44- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 54 of 66 desire to conceal violations of law. 68 Fed. Reg. at 15,318. Section 1.7(a) does not prohibit classi?cation where the purpose is not to conceal illegal activity, but to protect information the disclosure of which would harm national security. See, e. Arabian Shield Dev. Co. v. CIA, No. 3-98-CV-0624-BD, 1999 WL 118796, at *4 (ND. Tex. Feb. 26, 1999) (section of Executive Order that ?prohibit[ed] an agency from classifying documents as a ruse when they could not otherwise be withheld from public disclosure? did ?not prevent the classi?cation of national security information merely because it might reveal criminal or tortious acts?), 208 F.3d 1007 (5th Cir. 2000); see also Wilson v. DOJ, Civ. A. No. 87-2415-LFO, 1991 WL 111457, at *2 (D.D.C. June 13, 1991) if some of the information were embarrassing to Egyptian of?cials, it would nonetheless be covered by Exemption 1 if, independent of any desire to avoid embarrassment, the information withheld were properly classi?ed?). Indeed, the fact that the Executive Order prohibits classi?cation of records for the purpose of concealing illegal conduct, but does not prohibit classi?cation of records that may reveal illegal conduct, belies Plaintiffs? argument that a document cannot be properly classi?ed if the intelligence method or activity it re?ects is illegal. Likewise, the legality of an intelligence source, method, or activity is simply irrelevant to whether Exemption 3 applies. In ACLU v. DOJ, the Second Circuit squarely rejected the plaintiffs? argument that waterboarding could not qualify as a protectable intelligence method under Exemption 3 (in conjunction with the National Security Act) because the President had declared waterboarding illegal and ordered it discontinued. 681 F.3d at 73-74.13 Rather, the ?3 Plaintiffs mischaracterize this case insofar as they imply that the Second Circuit would agree that an illegal source or method would not qualify as an ?intelligence source or method? under the National Security Act. (Br. at 19). In fact, the Second Circuit ?atly refused to limit the -45- Case Document 39 Filed 12/11/15 Page 55 of 66 Circuit explained that the Supreme Court?s decision in Sims precludes any judicial limitation on the ability to protect intelligence sources and methods from compelled public disclosure beyond the requirement that the information at issue relate to the agency?s ?mandate to conduct foreign 9 intelligence,? and further described the practical dif?culties of permitting an inquiry into the legality of intelligence methods in the FOIA context. Id. (quoting Sims, 471 US. at 169); accord ACLU v. CIA, 892 F. Supp. 2d 234, 244 (D.D.C. 2012) (rejecting argument that unauthorized and illegal conduct cannot be protected under Exemption 3 as ?intelligence methods and sources?); Amnesty 1111?], 728 F. Supp. 2d at 505 CIA is permitted to withhold the[] disclosure [of records that fall within Exemption 3] regardless of the alleged illegality of the practices contained therein?); Navasky, 499 F. Supp. at 274 claim of activities ultra vires the CIA charter is irrelevant to an exemption 3 claim?). Similarly, information regarding law enforcement techniques and procedures does not lose its protection under Exemption merely because the procedures or techniques are found by a court to be unauthorized by statute or were used in an illegal manner. Indeed, the Second Circuit has held that, in determining Whether records meet Exemption 7?s threshold requirement, ?once the government has demonstrated that the records were compiled in the course of an investigation conducted by a law enforcement agency, the purpose or legitimacy of such executive action are not proper subjects for judicial review.? Halpern, 181 F.3d at 296 (citing Ferguson, 957 F.2d 1059, 1070 (2d Cir. 1992); Williams, 730 F.2d 882, 883 (2d Cir. 1984)). As the Circuit emphasized in Williams, there is no indication that ?Congress intended the release of FBI records containing one or more of the six protected subcategories of information [listed in 5 protectable category of ?sources and methods? to those that are legal, even if it accepted the President?s determination that waterboarding was illegal. See ACLU, 681 F.3d at 74. -46- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 56 of 66 U.S.C. 552(b)(7)] in the event a court determined such records were compiled in the course of an unwise, meritless or even illegal investigation.? Williams, 730 F.2d at 884-85. The Times has cited no controlling precedent to the contrary. Kuzma v. IRS, a per curiam opinion involving Exemption merely addressed the issue of whether the identities of IRS agents could be shielded from release under Exemption or whether a public interest in disclosure outweighed the harm to the agents? privacy interests, where the plaintiff argued that he was entitled to that information because the IRS had ?used unauthorized and illegal techniques in its investigation of him.? 775 F.2d 66, 69 (2d Cir. 1985). Furthermore, to the extent Kuzma could be understood to state a broader principle, it merely echoed the rule applied in the Exemption 1 context that an exemption may not be used for the purpose of shielding illegal activity from public view. See id. (stating that ?unauthorized or illegal investigative tactics may not be shielded from the public by use of FOIA exemptions? (emphasis added)). In any case, a holding that law enforcement records can never be protected from disclosure under Exemption 7 to the extent they include information regarding unauthorized or illegal investigative tactics would be in direct con?ict with Williams, a decision that precedes Kuzma and thus is controlling. See Williams, 730 F.2d at 884-85; see, e. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) are . . . bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court?). '4 '4 The Ninth Circuit, in turn, recently addressed Wilkinson v. FBI, 633 F. Supp. 336 (CD. Cal. 1986), the district court case cited by the Times, and declined to reach the issue of whether ?information about law enforcement techniques that are ?illegal or of questionable legality?? is excluded from the protection of Exemption Hamdan v. DOJ, 797 F.3d 759, 778 (9th Cir. 2015) -47- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 57 of 66 Accordingly, that some of the information withheld here may re?ect illegal or wrongful sources, methods, or activities simply has no bearing on whether the withheld material is properly exempt from public disclosure under the asserted FOIA exemptions. 2. The Government Did Not Invoke any FOIA Exemptions Improperly to Hide Agency Wrongdoing or Mistakes Here, the Government?s declarants have expressly avowed that they were not seeking to classify information out of a desire to conceal wrongdoing or avoid embarrassment. (Sherman Decl. 11 16; Wilson Decl. 11 13; Hardy Decl. 31?32). These declarations are ?accorded a presumption of good faith,? Carney, 19 F.3d at 812); see ACLU, 681 F.3d at 75 n.14 (according presumption of good faith to declarant?s statement that records were not withheld to conceal evidence of unlawful conduct), and Plaintiffs have not ?produce[d any] evidence suggesting bad fait on the agencies? parts. Wilmer, 592 F.3d at 75 (quoting Larson, 565 F.3d at 864) (rejecting claim that NSA had invoked Glomar doctrine in bad faith where plaintiffs had not submitted ?any evidence that even arguably suggest[ed] bad faith on the part of the NSA, or that the NSA provided a Glomar response to plaintiffs? requests for the purpose of concealing illegal or unconstitutional actions?). Rather, as described fully above, see supra, part II, the Government properly seeks to withhold information for the entirely proper purposes of preventing serious or exceptionally grave damage to the national security reasonably likely to occur from public disclosure of the withheld classified information, safeguarding statutorily protected intelligence sources, methods, activities, and functions, and protecting law enforcement information the disclosure of which would interfere with ongoing enforcement actions or reveal confidential techniques, procedures or guidelines. -43- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 58 of 66 Indeed, as evidenced by the speci?c excerpts cited by the Times, the Government has disclosed substantial information in this case showing the conclusions of the Inspectors General that the agencies committed some compliance Violations of various orders, policies, and directives. (See Br. at 14-17). That the Government released these potentially ?embarrassing? ?ndings of wrongdoing and mistakes refutes any claim that the challenged information was withheld for the purpose of concealing wrongdoing or avoiding embarrassment. B. The Government Has Not Of?cially Acknowledged or Waived the Protections of any Privilege or Exemption with Respect to the Withheld Information The Times fails to establish that there has been any of?cial disclosure, or other basis for ?nding a waiver, with regard to any of the information withheld by the Government. Under the doctrine of of?cial disclosure, the Court examines whether the Government is precluded from withholding particular information as classi?ed if the same information has been the subject of a prior, of?cial and authorized disclosure. To meet the standard for of?cial disclosure, the withheld information must be ?as speci?c as the information previously released,? ?match the information previously disclosed,? and be ?made public through an of?cial and documented disclosure.? Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009) (quotation marks omitted); see also New York Times v. DOJ, 756 F.3d 100, 120 n.19 (2d Cir. 2014) (recognizing that Wilson ?remains the law of this Circuit). Citing New York Times v. DOJ, 756 F.3d at 120, the Times attempts to read the ?match? requirement out of this test (see Br. at 23), but, contrary to the Times? suggestion, the Second Circuit panel in New York Times applied the match requirement. See New York Times, 756 F.3d at 120 n.19. And while the New York Times panel did not interpret this element as requiring ?absolute identity,? id. at 120, it did require a ?substantial overlap? and ?virtual[ parallel? between the withheld legal analysis and previously -49- Case Document 39 Filed 12/11/15 Page 59 of 66 disclosed information at issue in that case, see id. at 116. Contrary to the Times? suggestion, moreover, the Second Circuit did not hold that of?cial acknowledgment of the ?material elements of a previously secret document? (Br. at 23) waives the Government?s right to protect any related details. To establish an of?cial disclosure, Wilson?s speci?city and matching requirements must be met. 586 F.3d at 186; New York Times, 756 F.3d at 120 n.19. The Times fails to demonstrate that any of the withheld information has been of?cially disclosed under controlling Second Circuit precedents. As an initial matter, the Times provides only one actual example of speci?c information that has been previously of?cially disclosed?a general description of the PRISM program included in the Report on Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act by the Privacy and Civil Liberties Oversight Board dated July 2, 2014 Report?). (See Br. at 21-22). The Times claims that the disclosure of this general description of PRISM raises concerns about redactions in the 702 Report?s ?ndings and recommendations, speculating that ?many of? of those redactions ?presumably address the already disclosed operation of Prism.? (Br. at 22). Contrary to the Times? speculation, the Hardy Declaration makes clear that none of the information the Government continues to withhold matches aspects of PRISM that have been of?cially disclosed. (See Hardy Decl. ll 33). The Times also suggests, in passing, that, with respect to redactions of portions of the Joint IG Report concerning ?the internal struggle between DOJ lawyers and the White House in 2004 over the legality of the Stellarwind program? (Br. at 29), ?the extensive public acknowledgment of the facts of the dispute, including the details of Stellarwind, acts as a waiver to any exemptiOn that the Government may proffer? (Br. at 30). This speculative claim is also incorrect, and, moreover, it con?ates the of?cial disclosure doctrine with waiver of privilege. -50- Case Document 39 Filed 12/11/15 Page 60 of 66 The withholdings challenged by the Times at pages 29-30 of the Times? memorandum of law? withholdings in the Joint 1G Report, Vol. I at 36-50, Vol. II at 123 and ?surrounding pages,? and various sections of Vol. 111? include redactions pursuant to Exemptions 1 and 3, as well as Exemption 5 based on the attorney-client, work product, and deliberative process privileges. To the extent the Times argues that information was improperly withheld pursuant to Exemptions 1 and 3 based on prior of?cial disclosures, the Times identi?es no speci?c disclosures that are as speci?c as and match the information that has been redacted or even overlap with the redacted information. And, in fact, as set forth in the Government?s declarations, none of the classi?ed material cited on pages 29-30 of the Times? memorandum of law is as speci?c as and matches information that has been of?cially disclosed. (See Hardy Decl. 11 33; Wilson Decl. 1] 27; Sherman Decl. 1] 17; Classi?ed Sherman Decl.). The Times is also wrong to argue that, by publicly acknowledging some facts regarding STELLARWIND, the Government has waived its right to withhold under Exemption 5 information regarding privileged legal deliberations among OLC and other Executive Branch of?cials about the program based on the attorney-client, deliberative process, and work product privileges. The of?cial disclosure doctrine is distinct from the doctrines of waiver that apply to privileged documents and information. In order to determine whether there has been a waiver of privilege, it is necessary to examine the particular information at issue, the nature and context of the alleged disclosure, and the speci?c privilege(s) asserted. With respect to the attorney-client privilege, for example, the privilege is not ?lost by the mere fact that the information communicated [between attorney and client] is otherwise available to the public.? United States v. Cunningham, 672 F.2d 1064, 1073 n.8 (2d Cir. 1982). That is because the privilege attaches to communications, not information. Id; accord Upjohn, 449 US. at 395-96; Matter of -51- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 61 of 66 Grand Jury Subpoenas, 959 F.2d 1158, 1165 (2d Cir. 1992); see also Kenneth W. Graham, Jr., Federal Practice Procedure, Federal Rules of Evidence 5729 (updated Apr. 2015) (waiver ?requires disclosure of a privileged communication; revealing the information communicated is not a waiver regardless of how much such disclosure may sap the value of the privilege?). It is well-settled in this circuit, moreover, that disclosures of attorney-client privileged information outside the context of litigation?i.e., where the disclosures are not used to in?uence a judge or jury?do not waive privilege as to other, undisclosed attorney-client communications. In re Von Bulow, 828 F.2d 94, 102-03 (2d Cir. 1987); accord In re John Doe Corp, 350 F.3d 299, 305-06 (2d Cir. 2003); In re Grand Jury Proceedings, 219 F.3d 175, 183 (2d Cir. 2000). This is true even if the ?disclosures in the public arena [are] ?one-sided? or ?misleading.?? Von Bulow, 828 F.2d at 103. Like the attorney-client privilege, the deliberative process privilege does not depend on the speci?c facts or analysis at issue; rather, it is the author?s advice and recommendations, and the selection of particular facts or information to be provided to the decisionmaker, that are protected. See Grand Cent. P?ship, 166 F.3d at 482; Lead Indus. Ass ?n v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979); Nat ?1 Sec. Archive v. CIA, 752 F.3d 460, 465 (DC. Cir. 2014). Each deliberation is independently entitled to protection, regardless of the content of the advice or information communicated to the decisionmaker. Courts therefore have recognized that waiver of the deliberative process privilege is generally limited to the speci?c document or information that has been disclosed, and does not encompass related material. See, e. In re Sealed Case, 121 F.3d 729, 741 (DC. Cir. 1997) (?all-or-nothing? approach of subject matter waiver is not applied to claims of deliberative process privilege); Mobil Oil Corp. v. EPA, 879 F.2d 698, 700- 01 (9th Cir. 1989); United States v. Wells Fargo Bank, NA, No. 12 Civ. 7527 (JMF), 2015 WL -52- Case Document 39 Filed 12/11/15 Page 62 of 66 6395917, at *1 (S.D.N.Y. Oct. 22, 2015); Agility Pub. Warehousing Co. KSC. v. DOD, No. CV 14-1064 (JDB), 2015 WL 3867978, at *4 (D.D.C. June 23, 2015); Lehman Bros. Holdings, Inc. v. United States, No. 10 Civ. 6200 (RMB), 2014 WL 715525, at *2 (S.D.N.Y. Feb. 24, 2014). The protection of the work product doctrine, in turn, is waived only when work product is disclosed to an adversary or when disclosure substantially increases the likelihood of disclosure to potential adversaries. See In re Steinhardt Partners, LB, 9 F.3d 230, 235 (2d Cir. 1993) (?The waiver doctrine provides that voluntary disclosure of work product to an adversary waives the privilege as to other parties?); In re Reserve Fund Secs. Derivative Litig, Nos. 09 09 Civ. 4346 (PGG), 2012 WL 4774834, at *6 (S.D.N.Y. Sept. 12, 2012) (noting that courts ?nd work product protection waived ?only if the disclosure substantially increases the opportunity for potential adversaries to obtain the information? (quotation marks omitted)). Thus, when it comes to privileged information, whether a waiver exists depends on the privilege at issue and the nature of the public disclosure. As set forth in the Government?s declarations, to the agencies? knowledge, none of the legal advice or legal deliberations, including attorney work product, withheld on the pages cited by the Times has been publicly disclosed (see Colborn Decl. 1H 16, 21; Hardy Decl. 1111 89, 91; Hibbard Decl. 11 13; Wiegmann Decl. 1111 7-8, 10-12, 15), and thus there has been no waiver of any privilege with respect to this information, even if other certain facts have been made public about the STELLARWIND program. C. The Times? Remaining Challenges Are Meritless Finally, Plaintiffs challenge several speci?c redactions that they characterize as ?information relating entirely to legal analysis or known historical and statistical information.? -53- Case Document 39 Filed 12/11/15 Page 63 of 66 (Br. at 25). They contend that this information cannot be protected by Exemptions 1 or 3 because, in their view, disclosure could not reasonably be expected to cause damage to national security and/or the information does not relate to intelligence sources, methods or activities. (See id. at 25-29). This is demonstrably incorrect. The Times ?rst points to redactions of portions of the Joint IG report recounting the contents of a memorandum written by OLC attorney John Y00, and argues that abstract legal analysis cannot be classi?ed. (Br. at 25, bullet 1 (citing E-256-260), 27). This is ?atly wrong as a legal matter, as the Second Circuit has recognized that legal analysis can be classi?ed when its disclosure would reveal a classi?ed fact, or when classi?ed facts are inextricably intertwined with legal analysis. New York Times, 756 F.3d at 119. But in any event, the fact is that the overwhelming majority of this material was withheld pursuant to Exemption 5, not Exemption 1. As declarant explains, this information is properly protected by the deliberative process and attorney-client privileges. (Colborn Decl. 10, 15-17). Within this section, the NSA made two limited redactions pursuant to Exemptions 1 and 3 to protect information identifying targets of NSA surveillance and operational detail regarding the scope and timing of STELLARWIND collection information that falls squarely within the purview of Exemptions 1 and 3. (Sherman Decl. 1H 23, 57). Second, Plaintiffs challenge redactions contained in a Section of the Joint IG Report discussing who had security clearance at various times to access STELLARWIND, including a redaction explaining ?how James Baker, the head of OIPR, became aware of Stellarwind based on a ?strange, unattributed? language in a FISA application, despite the fact that the link between this discovery and Stellarwind is now a matter of public record.? (Br. at 25, bullet 2 (citing E- 262-265)). Relatedly, they challenge the redactions to a chart containing the cumulative number -54- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 64 of 66 of clearances for STELLARWIND (Br. at 25, bullet 3 (citing Contrary to the Times? claim, the various redactions taken on these pages fall squarely within the asserted FOIA exemptions. The NSA properly asserted Exemptions 1 and 3 on E-262 to protect information that would identify a target, a targeted communications facility, and the scope of the agency?s collections. (Sherman Decl. 1m 23, 30); see supra at 13, 15, 16. As to information pertaining to the numbers of personnel granted access to STELLARWIND and when access was granted, which appears on pages E-262-263 and E-267, Exemption 3 plainly applies. NSA maintained responsibility for processing requests for STELLARWIND access throughout the lifetime of the program and was responsible in part for determining who to process. (Sherman Decl. 1] 68). As the agency explains, the means by which NSA handles and protects its classi?ed information easily quali?es as ?the organization or any function of the or any information with respect to the activities thereof? pursuant to section 6 of the NSAA. As such, the agency need not demonstrate that national security harm may occur from release of this information. See supra at 22-25.15 Third, the Times claims that the FBI improperly redacted a description ?of the general 9? nature of the ?mission of the agency?s Electronic Operations and Sharing Unit (Br. at 26, bullet 2 (citing see id. at 28). In fact, the information redacted does not re?ect general mission, which is publicly acknowledged, but rather consists of ?speci?c operational missions conducted by that have never been publicly disclosed. (Hardy Decl. 1H 74, 76). This information plainly pertains to intelligence methods and activity and, if 15 As stated in footnote 5, the Government intends to lift the two challenged redactions taken on E-264, which contains two of the challenged redactions in this section. In addition, the Government also intends to disclose the number of NSL requests that were made in particular years pursuant to three speci?ed authorities. (See Br. at 26 (bullet -55- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 65 of 66 revealed, would enlighten adversaries as to speci?c collection methods and platforms targeted by the FBI and disseminated to other US. Government agencies. (161.). Thus, it is squarely protected by Exemptions 1 and 3. Finally, Plaintiffs misleadingly claim that the FBI redacted ?various legal factors? that FBI agents should consider in deciding whether to include a non-disclosure provision in an NSL. (Br. at 27; see Br. at 26, bullet 3 (citing Instead, FBI attorneys provided guidance as to what factual ?adverse consequences? agents should consider in deciding Whether inclusion of a non-disclosure provision is an NSL is apprOpriate. (Hardy Decl. 77-78). This information clearly pertains to an intelligence method and activity and, as the FBI explains, public disclosure could reasonably be expected to cause adversaries to modify their behaviors to attempt to minimize the likelihood that a non-disclosure provision is included in any NSLs directed at their accounts. In such a case, the adversary could be alerted to an NSL directed at his/her account and reasonably could be expected to take action to avoid further surveillance activity. (Id. ?l 78). The information was therefore properly withheld under Exemptions 1 and 3. CONCLUSION The Government has processed and released a substantial volume of information in this case and, as its declarants attest, has carefully reviewed the challenged redactions to ensure that they properly fall within the scope of a FOIA exemption and otherwise do not contain information that has been of?cially acknowledged or waived. Accordingly, the Government?s -56- Case 1:14-cv-03776-AT Document 39 Filed 12/11/15 Page 66 of 66 motion for summary judgment should be granted, and the Times? motion for summary judgment should be denied. Dated: New York, New York December 1 1, 2015 Respectfully submitted, PREET BHARARA United States Attorney By: TARA M. La MORTE ELIZABETH TULIS Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Telephone: (212) 637-2746 (La Morte) (212) 637-2725 (Tulis) tara.lamorte2@usdoj . gov elizabeth.tulis@usdoj .gov -57- Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 1 of 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NEW YORK TIMES COMPANY and CHARLIE SAVAGE, Case No. 1:14-cv-3776 Plaintiffs, v. DEPARTMENT OF JUSTICE, Defendant. DECLARATION OF MARY E. WILSON ACTING INFORMATION REVIEW OFFICER LITIGATION INFORMATION REVIEW OFFICE CENTRAL INTELLIGENCE AGENCY I, MARY E. WILSON, hereby declare and state: l. I currently serve as the Acting Information Review Officer for the Litigation Information Review Office at the Central Intelligence Agency or ?Agency?). Although I only recently assumed the title of Acting IRO, I have served as the Deputy IRO for LIRO since January 2013.2 2. Prior to assuming this position, I served as the Deputy Chief of the Historical Review Branch within the CIA Historical Collections Division for ten months. 1 The name of my office changed in February 2015, but my underlying responsibilities and authorities, and those of my office, remained the same. 2 I assumed the title of Acting IRO on 30 November 2015, when the IRO for LIRO, Martha Lutz, retired from the Agency. 1 Case Document 40 Filed 12/11/15 Page 2 of 15 Immediately before that, I was an officer in HCD for one year. In both of those positions, I worked on preparing discrete historical collections of information for public release. Before serving in HCD, I was an Associate IRO in the Directorate of Support for nearly three years, serving as the Deputy DS IRO for approximately one of those years. In that role, I was responsible for making classification and release determinations for information originating within the Directorate of Support. I have worked in the information review and release field for more than fifteen years and have held other administrative and professional positions within the CIA since 1986. 3. As the Acting IRO for the LIRO, I am responsible for the classification review of CIA documents and information that may be the subject of court proceedings or public requests for information under the Freedom of Information Act 5 U.S.C. 552, and the Privacy Act of 1974, 5 U.S.C. 552a. I am a senior CIA official and hold original classification authority at the TOP SECRET level under written delegation of authority pursuant to Section 1.3(c) of Executive Order No. 13526, 75 Fed. Reg. 707 (Jan. 5, 2010) (discussed in further detail below). Because I hold original classification authority at the TOP SECRET level, I am authorized to assess the current, proper classification of CIA information, up to and including Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 3 of 15 TOP SECRET information, based on the classification criteria of Executive Order 13526 and applicable regulations. 4. Through the exercise of my official duties, I am familiar with this civil action and the underlying FOIA requests submitted to the Department of Justice I make the following statements based upon my personal knowledge and information made available to me in my official capacity. I. BACKGROUND 5. Plaintiffs submitted two separate FOIA requests seeking classified reports written by Office of Inspector General between 2007 and 2012. One of the reports sought by the Plaintiffs, the ?Report on the President?s Surveillance Program? (the ?Joint OIG Report?), is a report3 prepared by the inspectors general of five different agencies, including the CIA Inspector General. The Joint OIG Report was referred to the CIA so that it could evaluate whether portions of the report containing CIA equities were appropriate for release to the Plaintiffs. After a careful review process, the Agency determined that some information could be released, but that other portions of the Joint OIG Report remain currently and properly classified or otherwise protected from disclosure and, as such, must be withheld under the FOIA pursuant to Exemptions 3 The Joint OIG Report is dated 10 July 2009 and is the only report containing redactions of CIA information that are challenged by the Plaintiffs in this action. Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 4 of 15 and 6. My understanding is that the Plaintiffs have limited their challenges to five focused subject areas, as described in their opening brief and contained within excerpts filed with that brief. Within those excerpts, CIA information is withheld pursuant to the FOIA on the following pages: (1) (2) (3) (4) and (5) Accordingly, within the five subject areas, it is my understanding that redactions to CIA information are only challenged under subject areas of the Plaintiffs? brief entitled ?Documents Reflecting Agency Mistakes, Possible Wrongdoing, and Sources of Embarrassment,? ?Information About Publicly Filed Criminal Cases,? and ?Descriptions of the Narrative of the Legal Dispute Between OLC Attorneys and White House Officials Concerning Flaws in the Legal Justifications for Stellarwind.? The remainder of this declaration explains why the withheld CIA information in the challenged excerpts remains exempt from disclosure pursuant to Exemptions and II. FOIA EXEMPTIONS PROTECTING CLASSIFIED INFORMATION 4 There may be places where a discrete redaction of CIA information (such as CIA personnel or an office title under Exemption is otherwise subsumed within a much larger redaction claimed by another agency. There may also be a redaction of CIA information on a page the top of that is unrelated to one of the five subject areas challenged by the Plaintiffs. Based on the Plaintiffs' description of the challenged redactions, the CIA did not consider these minor areas to be challenged and will not address those areas in this declaration. However, if the Plaintiffs did intend to challenge those isolated redactions, the Agency will submit a supplemental declaration describing the basis for withholding. 4 Case Document 40 Filed 12/11/15 Page 5 of 15 A. Exemption 7. Exemption provides that the FOIA does not require the production of records that are: 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)(l). As explained below, the Exemption withholdings asserted by the Agency in the Joint OIG Report and E- 103) satisfy the procedural and the substantive requirements of Executive Order 13526. 8. Section l.l(a) of Executive Order 13526 provides that information may be originally classified under the terms of this order if the following conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the U.S. Government; (3) the information falls within one or more of the categories of information listed in Section 1.4 of Executive Order l3526; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in some level of damage to the national security, and the original classification authority is able to identify or describe the damage. The Executive Order also mandates that Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 6 of 15 records be properly marked and that the records have not been classified for an improper purpose. 1. Procedural Requirements 9. Original classification authority. Pursuant to a written delegation of authority in accordance with Executive Order 13526, I hold original classification authority at the TOP SECRET level. Therefore, I am authorized to conduct classification reviews and to make original classification decisions. I have determined that the portions of the Joint OIG Report addressed in this declaration are currently and properly classified. 10. U.S. Government information. The information at issue is owned by the U.S. Government, was produced by or for the U.S. Government, and is under the control of the U.S. Government. 11. Classification categories in Section 1.4 of the Executive Order. Exemption is asserted in this case to protect information that concerns ?intelligence activities (including covert action), intelligence sources or methods, or II pursuant to Section 1.4(c) of the Executive Order. Additionally, Exemption is asserted to protect information that pertains to ?foreign relations or foreign activities of the United States, including confidential sources? under Section Case Document 40 Filed 12/11/15 Page 7 of 15 12. Damage to the national security. I have determined that the CIA information contained in the Joint OIG Report, and redacted pursuant to Exemption is classified TOP SECRET, because it constitutes information the unauthorized disclosure of which could reasonably be expected to result in exceptionally grave damage to the national security. 13. Proper purpose. With respect to the information for which Exemption is asserted in this case, I have determined that this information has not been classified in order to conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization or agency; restrain competition; or prevent or delay the release of information that does not require protection in the interests of national security. 14. Marking. The document is properly marked in accordance with Section 1.6 of the Executive Order. ii. Substantive Requirements 15. I have reviewed the contents of the Joint OIG Report and determined that the excerpts cited above contain CIA information that is currently and properly classified. Specifically, I have determined that this information was properly withheld because its disclosure could be expected to lead to the identification of intelligence sources, methods, and activities of the CIA and/or its disclosure could cause damage Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 8 of 15 to foreign relations or foreign activities of the United States, including confidential sources within the meaning of Sections l.4(c) and 1.4(d) of Executive Order 13526. Disclosure of the CIA information in the Joint OIG Report could reasonably be expected to result in exceptionally grave damage to national security and therefore the information is currently and properly classified at the TOP SECRET level. The danger to national security that could occur if the classified information were to be disclosed is described in Part below. B. Exemption 16. Exemption protects information that is specifically exempted from disclosure by statute. A withholding Statute under Exemption must (A) require that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establish particular criteria for withholding or refer to particular types of matters to be withheld. 5 U.S.C. 552(b)(3). 17. Here, the CIA has determined that Section 102A(i)(l) of the National Security Act of 1947, as amended, 50 U.S.C. 3024 (the ?National Security Act?), which provides that the Director of National Intelligence ?shall protect intelligence II sources and methods from unauthorized disclosure, also applies Case Document 40 Filed 12/11/15 Page 9 of 15 to the information for which Exemption was asserted.5 .As an initial matter, the National Security Act has been widely recognized as a withholding statute under Exemption in that it refers to particular types of matters to be withheld, and ?requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue.? 5 U.S.C. 552(b)(3). 18. In addition, the CIA has determined that Section 6 of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. 3507 (the Act?), also constitutes a withholding statute under Exemption Section 6 of the CIA Act protects from disclosure information that would reveal the organization, functions (including the function of protecting intelligence sources and methods), names, official titles, salaries, or numbers of personnel employed by the CIA. The CIA Act has been widely recognized by courts as a federal statute that ?establishes particular criteria for withholding or refers to particular types of matters to be withheld.? 5 U.S.C. 5 Courts have recognized that not just the DNI, but also CIA and other agencies, may rely upon the amended National Security Act to withhold records under FOIA. See, Larson V. Dep?t of State, 565 F.3d at 862?63, 865 (D.C. Cir. 2009); Talbot v. CIA, 578 F. Supp. 2d 24, 28?29 n.3 (D.D.C. 2008). Furthermore, the President specifically preserved ability to invoke the National Security Act to protect its intelligence sources and methods. See, Exec. Order No. 13470, 1.6(d) (revising Exec. Order No. 12333 after the NSA was amended), 73 Fed. Reg. 45325 (July 30, 2008) (reprinted in 50 U.S.C. 401 note) (requiring that the CIA Director ?[p]rotect intelligence and intelligence sources, methods, and activities from unauthorized disclosure in accordance with guidance from the 9 Case Document 40 Filed 12/11/15 Page 10 of 15 552(b)(3). Information in the Joint OIG Report was withheld pursuant to Section 6 of the CIA Act at E-233-36, and 343-44. DAMAGE TO NATIONAL SECURITY 19. One of the major functions of the CIA is to gather intelligence from around the world for the President and other United States Government officials to use in policy?making decisions. Intelligence collection lies at the heart of the Agency?s counterterrorism mission. Protection of the Agency?s sources and methods of collection, as well as its activities and functions, is critical to ensuring that the mission of the Agency is fulfilled. 20. During the course of this litigation, portions of the classified Joint OIG Report were publicly released. However, in coordination with other Executive Branch agencies, the CIA determined that other portions must be withheld because those portions contain CIA information related to properly classified intelligence sources, methods, and activities, as well as information related to the functions of the CIA that are properly withheld pursuant to Section 6 of the CIA Act. 21. Because revealing additional details about the withheld portions would disclose classified information, I am limited in my ability to describe the intelligence activities, sources, and methods at issue and the harm that would be 10 Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 11 of 15 occasioned by their disclosure on the public record.6 However, publicly I can acknowledge that the redacted CIA information can generally be grouped into four categories: (1) CIA interests and targets of collection; (2) information associating the CIA with particular criminal cases and investigations, including information relating to the CIA's assistance to those cases and investigations; (3) CIA operational information; and (4) information concerning organization and functions, including identification of specific CIA components.7 22. The disclosure of categories above could reasonably be expected to cause exceptionally grave damage to the national security. For example, adversaries, including terrorist organizations, could utilize information relating to the interests and targets of CIA collection to identify the specific collection methods employed by the Agency. Terrorist groups could also use this information to identify CIA intelligence sources and collection capabilities and, in turn, identify intelligence interests and/or exploit gaps in coverage. Additionally, the identification of targets even past targets is reasonably likely to cause targets and their associates to 6 If the Court desires, the CIA is prepared to supplement this unclassified declaration with an in camera, ex parte classified declaration containing additional information about the withheld information that the CIA cannot file on the public record. 7 All category (4) information is withheld pursuant to Section 6 of the CIA Act Exemption but is included within larger redactions. ll Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 12 of 15 take further protective measures to hide their activities, which, in turn, is reasonably likely to undermine the Agency?s ability to collect vital intelligence. Indeed, even indirect references to information obtained by classified sources and methods must be protected. 23. Disclosure of information associating the CIA with particular criminal cases and investigations could also benefit our adversaries. Terrorist organizations and other hostile groups have the capacity and ability to gather information from a myriad of public sources, analyze it, and determine the means and methods of intelligence collection from disparate details. As is the case with exposing CIA interests and targets, disclosing the association of the CIA with particular cases and investigations is reasonably likely to result in the identification of CIA sources and methods, and could defeat the specific collection efforts of the CIA and, more broadly, the Intelligence Community. Accordingly, even seemingly innocuous, indirect references to the assistance to a criminal case or investigation could have significant adverse effects when coupled with other publicly?available data. 24. Similarly, disclosure of the withheld CIA operational information in the Joint OIG Report could alert an individual or his associates to a means or method of intelligence collection, and provide insight into the scope and timing of important 12 Case Document 40 Filed 12/11/15 Page 13 of 15 collection efforts. This information could be used by terrorist organizations to uncover current collection activities, learn of gaps in collection or coverage, and take countermeasures to thwart future collection efforts, thereby harming national security. The Joint OIG Report contains detailed pieces of intelligence information and describes how that information was utilized by the CIA and law enforcement. For the reasons set forth above, disclosure of this operational information, including the limits of CIA collection in some cases, could reasonably be expected to cause exceptionally grave damage to national security. 25. Additionally, I note that although the Joint OIG Report was prepared in July 2009, the CIA information contained within it is by no means obsolete. The types of tools the Agency has previously used to collect, vet, and information are still in use, and the intelligence obtained using those methods contributes to the current collection efforts. Disclosures that could identify past or current intelligence sources and methods utilized by the CIA would reduce the Agency?s ability to collect important intelligence information and create accurate threat reporting and analytical products for U.S. policy makers. Accordingly, disclosure of such methods could reasonably be expected to result in exceptionally grave damage to the national security. 13 Case Document 40 Filed 12/11/15 Page 14 of 15 26. For the same reasons outlined above, in reviewing the Joint OIG Report, I have determined that the redacted information constitutes protected intelligence sources and methods. As such, the CIA information at issue falls squarely within the scope of Section 102A(i)(l) of the National Security Act. Additionally, the functions of the CIA and/or names of CIA offices were protected at and This information is specifically protected by Section 6 of the CIA Act. Although no harm rationale is required to withhold information under these Exemption statutes, as noted above, the release of this information could significantly damage the ability of the CIA and other members of the Intelligence Community to collect and analyze foreign intelligence information. Accordingly, all of the redacted CIA information contained in the Joint OIG Report is exempt from disclosure pursuant to Exemptions and 27. Although the U.S. Government officially acknowledged some information in the Joint OIG Report through the July 2009 release of the ?Unclassified Report on the President?s Surveillance Program," the redacted CIA information at issue here goes beyond what has been previously disclosed. My office spent a significant amount of time ensuring that redactions in the Joint OIG Report did not extend to information that was officially acknowledged in the unclassified report. Further, I 14 Case 1:14-cv-03776-AT Document 40 Filed 12/11/15 Page 15 of 15 have conducted a page?by-page, line?by-line review of the Joint OIG Report and have determined that there is no additional segregable, non?exempt CIA information that can be released. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed of December 2015. Litigation Information Review Office Central Intelligence Agency 15 Case 1:14lcv-03776-AT Document 42 Filed 12/11/15 Page 1 of 31 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES and CHARLIE SAVAGE, Case No. I4-cv-3776 (AT) Plaintiffs, v. DEPARTMENT OF JUSTICE, Defendant. DECLARATION OF DAVID J. SHERMAN I, DAVID J. SHERMAN, hereby declare and state: 1. I am the Associate Director for Policy and Records at the National Security Agency or ?Agency"), an intelligence agency within the Department of Defense. 1 have been employed with NSA since 1985. Prior to my current assignment, I held various senior and supervisory positions at NSA and elsewhere in the Executive Branch, to include serving as the Deputy Chief of Staff in the Agency?s Signals Intelligence Directorate, its representative to the Department of Defense, Deputy Associate Director for Foreign Affairs, and Director for Intelligence Programs at the National Security Council. As the Associate Director for Policy and Records, 1 am responsible for, among other things, the processing of all requests made pursuant to the Freedom of Information Act U.S.C. 552, for NSA records. 2. In addition, I am a TOP SECRET original classi?cation authority pursuant to Section 1.3 of Executive Order 13526, dated 29 December 2009 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 2 of 31 (75 Fed. Reg. 707). It is my responsibility to assert the FOIA exemptions over NSA information in the course of litigation. Through the exercise of my official duties, I have become familiar with the current litigation arising out of FOIA requests for information filed by the Plaintiffs, the New York Times and Charlie Savage. 3. Through the exercise of my official duties, I have become familiar with this civil action and the underlying FOIA requests made to the United States Department of Justice I make the following statements based upon my personal knowledge and information made available to me in my of?cial capacity. 4. 1 submit this declaration in support of the Motion for Summary Judgment in this proceeding. The purpose of this declaration is to explain and justify, to the extent possible on the public record, the withholdings taken by the NSA in responding to Plaintiffs? requests for information under the FOIA.I To the extent that the Court requires additional information regarding particular withholdings, the Agency will submit an in camera, ex parte classi?ed declaration upon request to provide further explanation of the harm to the national security that could reasonably be expected to occur if certain information were to be released. Although the Plaintiffs are challenging redactions taken in a number of different Inspectors General reports produced as a result of its FOIA request to the US. Department of Justice the challenged redactions involving NSA equities are limited to pages located in the O?ice ofinspectars General ofthe Department ofDe?nse, Department of Justice, Central Intelligence Agency, and O??ice of the Director of National Intelligence Report on the President ?3 Surveillance Program (hereinafter, ?Joint 01G Report?) and the O??ice of the Inspector Generat, Department of Justice Review of the Federal Bureau of Investigation ?5 Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (hereinafter, ?702 Report?). This declaration will address only those challenged redactions. Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 3 of 31 ORIGIN AND MISSION OF NSA 5. The NSA was established by Presidential Directive in October 1952 as a separately-organized agency within the Department of Defense under the direction, authority, and control of the Secretary of Defense. foreign intelligence mission includes the responsibility to collect, process, analyze, produce, and disseminate signals intelligence information for foreign intelligence and counterintelligence purposes to support national and departmental missions and for the conduct of military operations. See ED. 12333, section as amended. 6. In performing its SIGINT mission, NSA exploits foreign electromagnetic signals to obtain intelligence information necessary to the national defense, national security, or the conduct of foreign affairs. NSA has developed a sophisticated worldwide collection network that acquires foreign and international electronic communications. The technological infrastructure that suPports foreign intelligence information collection network has taken years to develop at a cost of billions of dollars and signi?cant human effort. It relies on sophisticated collection and processing technology. IMPORTANCE OF SIGINT TO THE NATIONAL SECURITY 7. There are two primary reasons for gathering and analyzing intelligence information. The ?rst, and most important, is to gain the information required to direct us. resources as necessary to counter threats to the nation and its allies. The second reason is to obtain the information necessary to direct the foreign policy of the United States. Foreign intelligence information provided by the NSA is routinely distributed to a wide variety of senior Government of?cials, including the President; the President?s Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 4 of 31 National Security Advisor; the Director of National Intelligence; the Secretaries of Defense, State, Treasury, and Commerce; U.S. ambassadors serving in posts abroad; the Joint Chiefs of Staff; and the Uni?ed and Speci?ed Commanders. In addition, information is disseminated to numerous agencies and departments, including, among others, the Central Intelligence Agency; the Federal Bureau of investigation; the Drug Enforcement Administration; the Departments of the Army, Navy, and Air Force; and various intelligence components of the Department of Defense. lnfonnation provided by NSA is relevant to a wide range of important issues, including, but not limited to, military order of battle, threat warnings and readiness, turns proliferation, terrorism, and foreign aspects of international narcotics traf?cking. This information is often critical to the formMation of U.S. foreign policy and the support of U.S. military operations around the world. Moreover, intelligence produced by NSA is often unobtainable by other means. CATEGORIES OF INFORMATION WITHHELD 8. The purpose of this declaration is to advise the Court that NSA withheld certain information, as set forth below, because it is properly exempt from disclosure under the FOIA based on Exemptions 1 and 3, 5 U.S.C. 552(b)(l), (3), respectively. This is so because the information remains Currently and properly classi?ed in accordance with ED. 13526 and protected from release by statutes, speci?cally Section 6 of the National Security Agency Act of 1959 (Pub. L. No. 86-36) (codi?ed at 50 U.S.C. 3605) Act?), 18 U.S.C. 798, and Section 102A(i)(1) of the National Security Act of 1947, as amended (codi?ed at 50 U.S.C. 3024). 9. The information withheld can be generally grouped into seven (7) categories: (1) the identities of targets of NSA collection; (2) operational details of NSA Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 5 of 31 collection, such as the tools and techniques employed and the types of communications facilities2 targeted; (3) the identities, number, and level of participation of communications service providers; (4) the association of NSA with particular criminal cases; (5) the scope and timing of STEEIJLEUUNIND3 collection and response to concerns; (6) information concerning employees and organization; and, (7) information relating to NSA processes for handling classi?ed information. NSA information in categories 1 through 5 was withheld under FOIA Exemption 1 and Exemption 3; NSA information in categories 6 and 7 was withheld under Exemption 3, pursuant to the NSA Act of 1959 (50 U.S.C. 3601i).4 10. Additionally, the justi?cation for some of the challenged information that the agency withheld under FOIA Exemptions and 3 can only be addressed in an in camera, ex parte classi?ed declaration that will accompany this unclassi?ed declaration. This is so because any description of the information withheld would reveal information that is currently and properly classi?ed in accordance with 50 13526 and protected from release by statutes as this information would reveal the intelligence sources, methods, activities, and functions of collection and exploitation. 2 The term ?facilities? refers to the places at which electronic surveillance is directed, is being used, or is about to be used, by a foreign power or an agent of a foreign power. 3 In response to the terrorist attacks of ll September 2001, on 4 October 2001, President George W. Bush issued a Top Secret authorization to the Secretary of Defense directing that the signals intelligence (SIGINT) capabilities of the National Security Agency (NSA) be used to detect and prevent further attacks in the United States, which was referred to as the President?s Surveillance Program. The cover term that NSA used to protect the President?s Surveillance Program was STELLARWIND. 4 I understand that Plaintiffs are only challenging the Govemrnent?s withholdings in the pages included in the appendix of excerpts attached to their brief. Those challenged pages are listed in the table of contents to the appendix at Section (Dkt. 32 at E-2 through E4) and have been included as excerpts at through E-382. Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 6 of 31 01A EXEMPTION 11. Section 552(b)(1) of the FOIA provides that the 01A does not require the release of matters that are Speci?cally authorized under criteria established by an Executive Order to be kept secret in the interest of the national defense or foreign policy, and are in fact prOperly classi?ed pursuant to such Executive Order. The current Executive Order that establishes such criteria is 13.0. 13526. 12. Section 1.1 of 5.0. 13526 provides that information may be originally classi?ed if: (1) an original classi?cation authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of the Executive Order; and (4) the original classi?cation authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, and the original classi?cation authority is able to identify or describe the damage. 13. Section l.2(a) of 15.0. 13526 provides that information shall be classi?ed at one of three levels. Information shall be classi?ed at the TOP SECRET level if its unauthorized disclosure reasonably could be expected to cause exceptionally grave damage to the national security. Information shall be classi?ed at the SECRET level if its unauthorized disclosure reasonably could be eXpected to cause serious damage to the national security. Information shall be classi?ed at the CONFIDENTIAL level if its unauthorized disclosure reasonably could be expected to cause damage to the national security. Case Document 42 Filed 12/11/15 Page 7 Of 31 14. Section 1.4 of ED 13526 provides that information shall not be considered for classi?cation unless it falls within one (or more) of eight speci?cally enumerated categories of information. The categories of classi?ed information in the NSA documents at issue here are those found in Section which includes intelligence activities (including covert action), intelligence sources and methods, or Section which includes foreign relations or foreign activities of the United States, including con?dential sources; and Section which includes vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security. 15. In my role as a TOP SECRET OCA, I reviewed the categories of information withheld pursuant to these FOIA requests and determined that those categories of information are currently and properly classi?ed in accordance with E0. 13526. Based on that determination, 1 have determined that the responsive material at issue was properly withheld, as all of this information is owned by, produced for, or under the control of the US. Government and is currently and properly classi?ed in accordance with 13.0, 13526. Accordingly, the release of this intelligence information could reasonably be expected to cause damage to the national security. The damage to national security that reasonably could be expected to result from the unauthorized disclosure of this classi?ed information is described below. 16. have also determined that, with respect to the information for which Exemption 1 has been asserted in this case, the information has not been classified in order to conceal violations of law, inef?ciency, or administrative error; prevent embarrassment to a person, organization, or agency; restrain competition; or prevent or Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 8 of 31 delay the release of information that does not require protection in the interests of national security. See 130. 13526, sec. 17. Finally, I have determined that none of the information withheld pursuant to Exemption 1 is as speci?c as information that has previously been released by the U.S. Government. FOIA EXEMPTION 3 18. Exemption 3 provides that FOIA does not require the production of records that are: specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted alter the date of enactment of the OPEN Act of 2009, speci?cally cites to this paragraph. 5 use. 19. The challenged information at issue in this litigation falls squarely within the scope of three statutes. The ?rst applicable statute is a statutory privilege unique to NSA. As set forth in section 6 of the NSA Act, Public Law 86-36 (50 U.S.C. 3605), ?[nlothing in this Act or any other law . . . shall be construed to require the disclosure of the organization or any function of the National Security Agency, [or] of any information with respect to the activities thereof. . . . (emphasis added). Congress, in enacting the language in this statute, decided that disclosure of any information relating to NSA activities is potentially harmful. Federal courts have held 5 The OPEN FOIA Act of 2009 was enacted on October 28, 2009, Pub. L. 111-83, 123 Stat. 2142, 2184; 5 U.S.C. after the applicable National Security Act provision was enacted, and therefore is not applicable to the analysis in this case. Case Document 42 Filed 12/11/15 Page 9 of 31 that the protection provided by this statute is, by its very terms, absolute. Section 6 states unequivocally that, notwithstanding other law, including the FOIA, NSA cannot be compelled to disclose information with respect to its activities. To invoke this privilege, the US. Government must demonstrate only that the information it seeks to protect falls within the scope of Section 6. Further, while in this case the harm would be exceptionally grave or serious, the U.S. Government is not required to demonstrate speci?c harm to national security when invoking this statutory privilege, but only to show that the information relates to the activities. functions and activities are therefore protected from disclosure regardless of whether the information is classi?ed. 20. The second statute is Section 102A(i)(l) of the National Security Act of 1947, as amended, 50 U.S.C. 3024(i)(1), which provides that ?the Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.? Like the protection afforded to core NSA activities by section 6 of the NSA Act, the protection afforded to intelligence sources and methods is absolute. Whether the sources and methods at issue are classi?ed is irrelevant for purposes of the protection afforded by 50 U.S.C. 3024(i)(1). 21. Finally, the third statute is 18 U.S.C. 798. This statute prohibits the unauthorized disclosme of classi?ed information: concerning the communications intelligence activities of the United States, or (ii) obtained by the processes of communications intelligence derived from the communications of any foreign government. The term ?communications intelligence,? as defined by Section 798, means the ?procedures and methods used in the interception of communications and the Case Document 42 Filed 12/11/15 Page 10 of 31 obtaining of information from such communications by other than the intended recipients.? 22. As described above, these statutes protect the fragile nature of the United States? intelligence sources, methods, and activities, including but not limited to, the existence and depth of signals intelligence-related successes, weaknesses, and exploitation techniques. These statutes recognize the vulnerability of intelligence sources and methods, including countermeasures, and the signi?cance of the loss of valuable intelligence information to national policymakers and the United States Intelligence Community Given that Congress speci?cally prohibited the disclosure of the sources and methods used by the IC, as well as any information related to functions and activities, 1 have determined that the information was properly withheld under FOIA Exemption 3, as described more fully below. CATEGORIES OF DOCUMENTS WITHHELD Mics of Targets of NSA Collecm! 23. NSA withheld from disclosure information relating to the identities of the targets of the collection programs discussed in the PSP OIG report and the 702 Report, including information collected under the STELLARWIND prograrn,6 the transition from the STELLARWIND program to FISC authority, the program, Section 215, the Protect America Act, and the FISA Amendments Act (FAA). In support of the Government?s application to the FISC for authorization to undertake electronic 6 NSA did not withhold from disclosure the fact that NSA was authorized under the STELLARWIND program to intercept certain international communications involving persons reasonably believed be associated with Al Qaeda or af?liated terrorist organizations. This information was publicly acknowledged by then-President Bush in December 2005. 10 Case Document 42 Filed 12/11/15 Page 11 of 31 surveillance against agents of foreign powers, the Government is statutorily obligated to provide the court with signi?cant detail concerning proposed targets for electronic surveillance, including detailed descriptions of the targets? organization and makeup. Both challenged reports discuss particular targets of NSA surveillance conducted under a range of legal authorities. Information in this category was withheld from E-44-47, E-97, E?llZ, E-239?4l, E-256, E-262, E-305-06, [3?3 1 2-1 3, E-333, E-365, E-367, and 24. have reviewed this information and determined that the identities of the targets of collection programs that are discussed in these documents are Currently and properly classi?ed at the TOP SECRET level in accordance with ED. 13526, because the release of this information could reasonably be expected to cause exceptionally grave damage to the national security. information regarding the targets of NSA collection efforts meets the criteria for classi?cation set forth in Sections and 1.4(g) of ED. 13526. 25. Disclosure of the details regarding the identities of particular targets of interest to NSA would reveal the capability of NSA and the to collect information about these targets and the limits of the Government?s collection efforts. This information would provide our adversaries detailed, damaging insight into the scope of important collection programs. Knowing this scope would enable our adversaries to gain insight into whether certain past communications are, or are not, likely to have been targeted and captured. Disclosure of this information would allow targets to discern which of their communications may have been ?safe,? and at which times certain of their communications were or were not subject to particular forms of NSA surveillance. In 11 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 12 0f 31 addition, alerting our adversaries to their status as the targets of NSA collection efforts? even collection efforts under programs that are no longer operational?could reasonably be expected to cause those identi?ed and their associates to take steps to protect their current communications and thus circumvent collection that might occur under other programs. Such countermeasures may inhibit access to the targets? and their associates? communications, thereby denying the United States access to information crucial to the national security. 26. The identities of those targeted by NSA for collection are also protected fi'om release by statute and are exempt from release based on FOIA Exemption 3, 5 U.S.C. 552(b)(3). Speci?cally, there are three Exemption 3 statutes that protect this information from public release: section 6 of the NSA Act, 50 U.S.C. 3605, 18 U.S.C. 798, and 50 U.S.C. 3024(i)(1). 27. The identities of the targets subject to NSA collection and surveillance relate to a ?function of the National Security Agency,? 50 U.S.C. 3605. Indeed, such information relates to one of primary functions, its SIGINT mission. Because any disclosure of information regarding the identities of particular NSA targets would reveal interest in these targets and our ability to collect information about them, it follows that this information would disclose ?information with respect to activities? in furtherance of its SIGINT mission. 50 U.S.C. 3605. 28. Additionally, this information is protected from release under 18 U.S.C. 798, which protects from disclosure classi?ed information concerning the communications intelligence activities of the United States, or information obtained by communications intelligence processes. Disclosure of the identities of the targets of NSA 12 Case Document 42 Filed 12/11/15 Page 13 of 31 collection programs would reveal key information about the communications intelligence activities of the United States, thereby falling within the scope of protection offered by this statute. 29. Finally, this information is protected from public release pursuant to Section 102A(i)(l) of the National Security Act, as amended, 50 U-S.C. 3024(i)(l), which states that ?[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." Disclosure of the information withheld here could reveal the sources or methods used to collect intelligence pertaining to these targets. Therefore, it falls squarely within the protection of this statute. Operational Details of NSA SIGINT Collection 30. NSA withheld from disclosure information concerning the technical means by which NSA conducts its SIGINT mission and other operational details. This information includes the procedures, techniques, and tools employed to collect communications of foreign intelligence targets 13-80-82, 3204-205, B?le? 214, E-283, 13-292, E-300, 13-349, E-372, the types of and details regarding the communications facilities targeted (Ii-46, 13-80-82, E-204, 13-208, E-216-217, 13-262, [3-281-95, 13?297, 13-300, E-3l9-23, E-327-30, E-342, 13-344, E-346, E-349-52, E-358, analytic tools and methodologies applied to collected data (E-245-46, 13-339}; speci?c methods by which NSA determines the foreignness of selectors or targets (hi-206418, E-ZI 6-171 and the scope and limitations of collection capabilities (Ii-47, E-49-50, E-77-78, E-80- 82, E-21l-213, E-217, E462, E-297, E-3ll, E-3l9-22, E-326-30, E-333-37, 121-340, E- 346, E-350-51, E-361-62, 5669-82). This category of information 13 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 14 of 31 applies to all of the programs discussed in the documents covered by this declaration, including information collected under the STELLARWIND program, the transition from the program to FISC authority, the program, Section 215, the Protect America Act, and the ISA Amendments Act (FAA). have reviewed this information and determined that such operational details are currently and properly classi?ed at the TOP SECRET level in accordance with ED. 13526, because the release of this information could reasonably be expected to cause exceptionally grave damage to the national security. Information regarding the technical means by which NSA effects collection, the scope and limitations of that collection, and the analytic tools and methodologies that NSA applies to that collection meets the criteria for classi?cation set forth in Sections 1.4 and 1.4(g) of 13.0. 13526. 32. Disclosure of the technical details by which NSA effects collection and the scope of that collection would demonstrate the capabilities and limitations of the US. SIGINT system, and the success (or lack of success) in acquiring certain types of communications. The collection of communications intelligence is central to mission and allows NSA to provide unique and timely insight into the activities of foreign adversaries for US. policymakers. Public disclosure of capabilities to acquire specific types of communications, the technical means and methods by which such acquisitions are effected, and the analytical tools applied to such acquisitions would alert targets to the vulnerabilities of their communications (and conversely, which of their communications are not vulnerable). Such a disclosure would also alert adversaries to the Government?s awareness of speci?c tradecraf?t used by the 14 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 15 of 31 adversaries to protect their communications and the methods by which such tradecra? is defeated. Once alerted, adversaries could develop additional countermeasures to thwart collection of electronic communications. Such a reaction may result in denial of access to targets? communications and therefore result in a loss of information critical to the national security and defense of the United States. 33. The sources and methods by which certain collection was effected, even for programs that have been discontinued, are of continuing importance to the national security. Although certain of these collection programs are no longer operational, publicly producing information revealing the operational details of those collection pregrams would provide adversaries with unique insights into analytic process for identifying worldwide facilities for collection, the manner in which such collection was executed, the tools, technOIOgies, and procedures applied to collected data, and collection capabilities and limitations. Adversaries could extrapolate such information and apply these insights against other forms of communications currently used by said adversaries, to the detriment of the national security. 34. Any release of additional operational details about these collection efforts would reveal uses of speci?c sources and methods that could assist adversaries in undermining national security mission. Foreign intelligence targets know how they communicate, so disclosure of Operational information such as the particular sources from which NSA collects information, the types of data collected, or the analytic methodologies applied to that data, would permit foreign adversaries to more effectively craft their communications security efforts to frustrate the Government?s collection of information crucial to the national security. 15 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 16 of 31 35. Similarly, disclosure of details regarding the types of facilities that NSA targeted under speci?c programs would reveal methodology for identifying speci?c facilities for collection, from which an adversary could extrapolate analytic process for identifying worldwide facilities for SIGINT collection. Adversaries could apply this insight to determine which forms of communications used may be subject to SIGINT collection. Additionally, disclosure of the speci?c facilities from which communications were collected under particular authorities would alert the targets to which communications NSA did and did not collect, as well as reveal the nature and scope of particular NSA programs. Disclosure of this information would allow targets to discern which of their communications may have been collected, as well as gaps in collection that could reveal that particular communications were ?safe.? This information would enable adversaries to evade particular channels of communication that are monitored or exploit channels of communication that are not subject to NSA surveillance, in either case risking exceptionally grave damage to national security. 36. Furthermore, information concerning certain modi?cations that were required in NSA surveillance, such as those at issue in the PRITT Order referenced at B- 77-78 and E637, would reveal possible gaps or limitations in NSA collection. The information includes dates on which collection was modi?ed, and the types of collections that were modi?ed. Disclosure of this information would allow adversaries to discern which of their communications may have escaped NSA collection and querying and are therefore ?safe,? and at which times certain of their communications were not subject to particular forms of NSA surveillance. For an adversary (particularly sophisticated adversaries who engage in advanced operational security techniques), such knowledge [6 Case Document 42 Filed 12/11/15 Page 17 of 31 would be invaluable to determining communication security vulnerabilities. For example, adversaries are known to study publically released information about NSA activities and to alter their communications security procedures accordingly to frustrate the Government?s collection of information. Revealing this information to targets of foreign intelligence collection risks causing exceptionally grave damage to national security. 37. Finally, disclosure of the methods by which NSA determines the foreignness of selectors and the procedures by which particular communications are targeted would reveal information from which targets could derive countermeasures to evade NSA surveillance by masquerading as persons whose communications either explicitly are not or may not be authorized for collection. Appropriately targeting communications remains a primary requirement under all NSA authorities, including Section 702 of the FISA Amendments Act. As a result, revealing the precise methods and procedures by which NSA determines that it is authorized to target particular communications could encourage adversaries to adopt countermeasures that would make it more dif?cult for NSA to determine accurately, for instance, the foreignness of their communications, thereby hindering the Government?s collection of information crucial to the national security of the United States. 38. This information is also protected from release by statute and is exempt from release based on FOIA Exemption 3, 5 U.S.C. 552(b)(3). Speci?cally, there are three Exemption 3 statutes that protect from public release the operational details of SIGINT collection: section 6 of the NSA Act, 50 U.S.C. 3605, 18 U.S.C. 798, and Section 102A(i)(1) of the National Security Act, as amended, 50 U.S.C. 3024(i)(l). 17 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 18 of 31 39. The operational details described above relate to a ??mction of the National Security Agency,? 50 U.S.C. 3605. indeed, this information relates to one of primary functions, its SIGINT mission. Any disclosure of the withheld operational details would reveal capabilities and the tradecra? used to carry out this vital mission. Further, revealing these details would disclose ?information with respect to activities? in furtherance of its mission. 50 U.S.C. 3605. 40- Moreover, this information is protected from public release pursuant to Section 102A(i)(1) of the National Security Act, as amended, 50 U.S-C. which states that ?[t}he Director of National Intelligence shall protect intelligence sources 95 and methods from unauthorized disclosure. The withheld operational details, such as the technical means of collection and analytic methodology, constitute the sources and methods used by NSA to carry out its SIGINT mission. Therefore, this information falls squarely within the protection of Section 102A(i)(1) of the National Security Act and should be afforded absolute protection from release. 41. Finally, the information is protected from release under 18 U.S.C. 798, which protects from disclosure classi?ed information concerning the communications intelligence activities of the United States, or information obtained by communications intelligence processes. Disclosure of the withheld operational details would reveal key information about the means through which NSA collects and processes communications intelligence, thereby falling within the scope of protection offered by this statute. Information Regarding Communications Service Providers 42. NSA has also withheld all identities of communications service providers, along with information that would reveal the number of providers in any NSA collection 18 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 19 of 31 program or their level of participation or non-participation in such programs, including under the STELLARWIND program, the transition from the STELLARWIND program to FISC authority, the program, Section 215, the Protect America Act, and the FISA Amendments Act (FAA). Information in this category was withheld from E- 233, E-282, E-290, E-294, E-318, E-322, 15-326, B349, 5-356, E-3 58, E-367, 11?- 369-72, and l. 43. Releasing information regarding the identity, number, or level of participation (or non-participation) of any communications service provider in the NSA collection programs discussed in the Joint 01G Report would disclose currently and properly classi?ed intelligence information} Disclosing even the number of providers subject to FISC orders that participated or did not participate in an NSA collection program during a particular period of time could allow an adversary to use other public information, such as which providers held the greatest market share during that time period, to extrapolate the identities of those communications service providers. Con?rming or denying a relationship between NSA and any communications service provider with respect to a speci?c intelligence activity is reasonably likely to cause exceptionally grave damage to the national security. Foreign intelligence targets know how they communicate, and therefore, would know, upon a disclosure of 7 Following the unauthorized disclosure in June 2013 of a FISC order issued as part of the telephony metadata program, the Government con?rmed the authenticity of one order, issued on April 25, 2013, by the FISC to a Verizon subsidiary called ?Verizon Business Network Services,? thereby con?rming the participation of VBNS in the program for the duration of that order (approximately 90 days). Apart from the participation of this one provider for the limited period covered by the April 2013 order, the US has not continued or denied the past or current participation or nonparticipation of any speci?c provider for any of the programs discussed in the documents covered by this declaration. 19 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 20 of 31 capabilities via the release of the identity of any particular communications service provider, which of their electronic communications were potentially vulnerable to collection, querying, and analysis (and, conversely, which of their communications may not have been vulnerable). Once alerted, targets could potentially frustrate NSA collection by simply switching to a provider that has not been identi?ed or who has been continued as not participating in a particular program, which can be done easily and quickly. This shift may result in denial of access to targets? communications and therefore result in a loss of access to information crucial to the national security and defense of the United States. 44. Furthermore, foreign intelligence targets are known to analyze public disclosures of capabilities. Confirmation that speci?c providers participated or did not participate in a particular program would alert targets to which of their communications NSA did and did not collect, as well as the nature and scope of collection efforts. The public disclosure that NSA possessed a speci?c capability over a speci?c period of time to acquire records from certain providers would easily alert targets to the vulnerability of their communications during that time period. Disclosure of this information would allow targets to know what information was collected at particular times, as well as identify gaps in coverage that would reveal that information from a particular period had liker evaded collection. 45. Disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national security for the reasons described above. I have reviewed this information and determined that it is currently and properly classi?ed as TOP SECRET and falls within Sections and 1.4(g) of ED. 13526. 20 Case Document 42 Filed 12/11/15 Page 21 of 31 46. This information is also protected from release by statute and is exempt from release based on FOIA Exemption 3, 5 U.S.C. 552(b)(3). Speci?cally, there are three Exemption 3 statutes that protect from public release the identities, number, and participation of providers: section 6 of the NSA Act, 50 U.S.C. 3605, 18 U.S.C. 798, and Section 102A(i)(1) of the National Security Act, as amended, 50 U.S.C. 3024(i)(1). The identities of the providers and the number of providers relate to a ?function of the National Security Agency,? 50 U-S.C. 3605. Indeed, this information relates to one of primary functions, its SIGINT mission. Any disclosure of the identities of the providers or the number of providers would reveal capabilities and the tradecraft used to carry out this vital mission. Further, revealing the providers? identities and the number of providers would disclose ?information with reapect to [Nsiars] activities? in furtherance of its mission. 50 use. 3605.8 48. Moreover, this information is protected from public release pursuant to Section 102A(i)(l) of the National Security Act, as amended, 50 U.S.C. 3024(i)(l), which states that ?[t]he Director of National Intelligence shall protect intelligence sources Congress recognized the need to protect the identities and participation of telecommunications carriers in NBA programs when it enacted provisions of the FISA Amendments Act of 2008 that barred lawsuits against telecommunications carriers alleged to have assisted the NSA after the 9! 11 attacks. In enacting this legislation, the Senate Select Committee on Intelligence found notwithstanding the fact that the existence of the TSP had been of?cially acknowledged, that ?electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of private companies that operate the nation?s telecommunications system.? S. Rep. 110? 209 (2007) at 9 (accompanying S. 2248, Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008). Notably, the SSCI expressly stated that, in connection with alleged post-9X11 collection programs, ?it would be inappropriate to disclose the names of the electronic communication service providers from which assistance was sought, the activities in which the Government was engaged or in which the providers assisted, or the details regarding any such assistance." Id. The Committee added that the ?identities of persons or entities who provide assistance to the intelligence community are properly protected as sources and methods of intelligence." Id. 21 Case Document 42 Filed 12/11/15 Page 22 of 31 and methods from unauthorized disclosure.? The speci?ed communications service providers are intelligence sources for communications intelligence. Therefore, information identifying the providers, or revealing the number of providers, falls squarely within the protection of Section 102A(i)(1) of the National Security Act and should be afforded absolute protection from release. 49. Finally, this information is protected from release under 18 U.S.C. 798, which protects from disclosure classi?ed information concerning the communications intelligence activities of the United States, or information obtained by communications intelligence processes. Disclosure of the identities of the providers or the number of providers would reveal key information about the methods by which NSA intercepts the communications of its foreign intelligence targets, thereby falling within the scope of protection offered by this statute. Association of SA with Particular Criminal Cases 50. The NSA withheld from disclosure information implicating NSA SIGINT collection in relation to speci?c criminal investigations and litigation. lnfonnation in this category was withheld from 13-84, E-97, E-102-10, E-i [2-13, E-238-4l, E-243d52, E-339, E-344, and E-367-68. 51. have reviewed this information and determined that information implicating NSA collection as it relates to speci?c criminal cases is currently and properly classi?ed at the TOP SECRET level in accordance with ED. 13526, because the release of this information could reasonably be expected to cause exceptionally grave damage to the national security. This information meets the criteria for classi?cation set forth in Sections and 1.4(g) of ED. 13526. NSA has 22 Case Document 42 Filed 12/11/15 Page 23 of 31 never of?cially acknowledged that any collection derived from its STELLARWIND program was implicated in a speci?c criminal case because, as described in greater detail in the paragraphs that follow, disclosure of such information would cause speci?c damage to the national security. Moreover, as described within PSP report materials that were publicly disclosed, NSA actively participated in the Classi?ed Information Procedures Act process through the submission of ex parte declarations, which were necessary to prevent the disclosure of currently and properly classi?ed information. 52. Disclosure of the details SIGINT collection that is implicated in a speci?c criminal investigation or litigation, to include any speci?c investigations andfor litigation cases, would identify particular defendants and their associates and would serve to con?rm to those engaged in or associated with international terrorism that the United States is able to, and in fact does, intercept or have access to these particular communications. Moreover, disclosure of such information would publicly reveal NSA Success in targeting the technology by which the individuals implicated in the identi?ed criminal investigations and litigation communicated. As discussed in greater detail above in paragraphs 23 and 25, publicly acknowledging an individual?s status as a target of NSA collection efforts would alert both the person identi?ed and their associates that the United States is able to, and in fact does, intercept or have access to their communications. Disclosure of this information, which contains content revealing time periods and the general nature of communications collected, can reasonably be expected to cause a change in the behavior of those who use these types of accounts and as such, thwart on-going intelligence collection efforts. Such countermeasures may inhibit access 23 Case Document 42 Filed 12/11/15 Page 24 of 31 to current targets? communications, thereby denying the United States access to information crucial to the national security. 53. Information about criminal cases involving the use of information derived from NSA SIGINT collection is also protected from release by statute and are exempt from release based on FOIA Exemption 3, 5 U.S.C. 552(b)(3). Speci?cally, there are three Exemption 3 statutes that protect this information from public release: section 6 of the NSA Act, 50 U.S.C. 3605, 18 U.S.C. 798, and 50 U.S.C. ?3024(i)(1). 54. Information about criminal cases involving the use of information derived from NSA SIGINT collection relates to a ?function of the National Security Agency,? 50 U.S.C. 3605. Indeed, such information relates to one ofNSA?s primary functions, its SIGINT mission. Because any disclosure of information regarding the use of SIGINT information in criminal investigations and litigation would reveal interest in particular targets and their associations and our ability to collect information about them, such a disclosure clearly constitutes ?information with respect to activities? in furtherance ofits SIGINT mission. 50 U.S.C. 3605. 55. Additionally, this information is protected from release under 18 U.S.C. 798, which protects from disclosure classi?ed information concerning the communications intelligence activities of the United States, or information obtained by communications intelligence processes. Disclosure of the use of NSA SIGINT information in criminal proceedings would reveal information relating to the targets of the Government?s communication intelligence activities and information that NSA has intercepted from the communications of its foreign intelligence targets, thereby falling within the scope of protection offered by this statute. 24 Case Document 42 Filed 12/11/15 Page 25 of 31 56. Finally, this information is protected from public release pursuant to Section 102A(i)(l) of the National Security Act, as amended, 50 U.S.C. 3024(i)(1), which states that Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.? Disclosure of the information withheld here could reveal the sources or methods used to collect intelligence pertaining to these targets. Therefore, it falls squarely within the protection of this statute. Scope and Timing of STELLARWIND Collection and Response to 00.] Concerns NSA has withheld certain details regarding the scope and timing of STELLARWIND collection and its response to concerns about the legality of certain aspects of the program based on OIA Exemptions and 3. This information was withheld from E-77-78, 5-243, E-256, E-28l-83, E-285-87, E-290-95, E-311, E-326-30, E-333-40, E-342, 13-344, E-355-59, and E-369-82. 58. These operational details were protected so that our Nation?s adversaries could not determine how the scope of collection under the STELLARWIND program changed over time. By revealing certain details regarding the scope and timing of STELLARWIND collection, including certain actions and modi?cations taken in response to concerns about the program, Our adversaries could deduce or infer which of their communications, if any, may have escaped NSA collection and querying. 59. Adversary knowledge that their communications escaped collection, querying, and analysis for an identified time provides them with certainty that any communications during that time period were safe. Foreign intelligence targets know how they communicate, and therefore, would know, upon a disclosure of the information 25 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 26 of 31 at issue, which of their electronic communications metadata records were potentially vulnerable to collection, querying, and analysis (and also, which of their communications may not have been vulnerable). For an adversary (particularly sophisticated adversaries who engage in advanced operational security techniques), such knowledge would be invaluable to determining communication security vulnerabilities. In a program such as STELLARWIND, which utilized various types of communications collections and metadata in order to produce complex contact chaining results, an adversary with knowledge of the scope and timing of the program would be confident that any account used either could not be chained and thus was safe from collection, or alternatively, was chained and therefore vulnerable. in essence, disclosure of the withheld information would allow targets to know what information the NSA possessed at particular times. 60. After reviewing this information, i have determined that this information meets the criteria for classi?cation in Sections and 1.4(g) of ED. 13526 and is currently and properly classi?ed at the SECRET level. As a result, it is exempt from disclosure under FOIA Exemption 1. 61. This same information is also protected from release by statute and is likewise exempt from release based on FOIA Exemption 3, U.S.C. 552(b)(3). Speci?cally, there are three Exemption 3 statutes that protect from public release certain details regarding the scope and timing of the program: section 6 of the NSA Act, 50 U.S.C. 3605, 18 U.S.C. 798, and Section lO2A(i)(l) of the National Security Act, as amended, 50 U.S.C. 3024(i)(1). 26 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 27 of 31 62. Information about the scope and timing of the STELLARWIND program relates to a ?function of the National Security Agency,? 50 .S.C. 3605. Indeed, it relates to one of primary functions, its SIGINT mission- Disclosures of certain details regarding the scope and timing of the STELLARWIND program, as stated above, would reveal collection capabilities. Thus, this information, if revealed, would disclose ?information with respect to activities? in furtherance of its SIGINT mission. 50 U.S.C. 3605. 63. Likewise, information about the scope and timing of the STELLARWIND program is protected from public release pursuant to Section 102A(i)(l) of the National Security Act, as amended, 50 U.S.C. 3024(i)(l), which states that ?[t]he Director of National intelligence shall protect intelligence sources and methods from unauthorized disclosure.? Revealing this information would provide our adversaries with information from which they could deduce the intelligence methods by which this tradecraft was detected, and thus, this information falls squarely within the protection of this statute and should be afforded absolute protection from release. 64. Finally, the information is protected from release under 18 U.S.C. 798, which protects from disclosure classi?ed information concerning the communications intelligence activities of the United States, or obtained by communications intelligence processes. The disclosure of certain details regarding the scope and timing of the STELLARWIND program would reveal precisely capabilities to intercept communications of its targets, thereby falling within the scope of protection offered by this statute. 27 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 28 of 31 Information Concerning Employees and Organization 65. The NSA withheld from disclosure information about the internal organization of NSA, including names of the of?ces involved in these programs and the names of individual employees whose af?liation with the Agency is not public. Information in this category was withheld from 382, E-325, and 66. This information is protected from release by statute and is exempt from release based on 01A Exemption 3, 5 U.S.C. 552(b)(3). Speci?cally, section 6 of the NSA Act, 50 U-S.C. 3605, protects from disclosure ?the organization or any function of the National Security along with the ?names, titles, salaries, or number of the persons employed? by the NSA. 50 U.S.C. 3605. The names of NSA employees, along with the names of particular NSA of?ces, fall squarely within the scope of protection offered by this statute. NSA Processes for Handling Classi?ed Information 67. The NSA withheld from disclosure information about NSA processes and procedures for handling classi?ed information, particularly compartmented STELLARWIND information, both in the criminal discovery context and during the course of SIGINT collection. Information in this category includes the number of individuals cleared for compartmented access to STELLARWIND information. Information in this category was withheld from E-82, E-98, E-113, E- 238, E-262-63, and 13-267. 68. This information is protected from release by statute and is exempt from release based on FOIA Exemption 3, 5 U.S.C. 552(b)(3). As discussed above, section 6 of the NSA Act, 50 .813. 3605, protects from disclosure ?the organization or any 28 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 29 of 31 function of the National Security Agency, or any information with respect to the activities thereof..-? 50 U.S.C. 3605. NSA was responsible throughout the STELLARWIND program for processing requests for access to the compartment, and in part for selecting which persons to process. The processes and procedures by which NSA handles and protects its classi?ed information, along with the scope of implementation of a highly classi?ed and closely held compartment, clearly implicate a core function and activity of the AgenCy. As a result, this information falls squarely within the scope of protection offered by this statute. Joint 16 Report Volume at Page 123 and Surrounding Pages Redacted in Full 69. The redactions challenged at [3-297 and the ?surrounding pages redacted in full? have been addressed in a separate in camera, ex parte classi?ed declaration. SEGREGABILITY 70. All of these documents have been reviewed for purposes of complying with segregability provision, which requires the Government to release ?any reasonably segregable portion of a recur after proper application of the FOIA exemptions. 5 U.S.C. 552(b). Multiple agencies performed an intensive, line-byline review of each document, redactions were surgically applied to protect information exempted from release under the FOIA, and all reasonably segregable, non?exempt information has been released. 71. Further, in accordance with ED. 13526, with respect to all of the redactions taken, it is my judgment that any information in those documents that, viewed in isolation, could be considered unclassi?ed, is nonetheless classi?ed in the context of this case because it can reasonably be expected to reveal (directly or by implication) 29 Case Document 42 Filed 12/11/15 Page 30 of 31 classi?ed national security information concerning the timing or nature of intelligence activities, sources, and methods when combined with other information that might be available to the public or adversaries of the United States. In these circumstances, the disclosure of even seemingly mundane portions of these documents, when considered in conjunction with other publicly available information, could reasonably be expected to assist a sophisticated adversary in deducing particular intelligence activities or sources and methods, and possibly lead to the use of countenneasures that may deprive the United States of critical intelligence. 30 Case 1:14-cv-03776-AT Document 42 Filed 12/11/15 Page 31 of 31 CONCLUSION I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed this [0 day of December, 2015, pursuant to 28 u.s.c. 1746. m?/w Dr. David Wan Associate Director for Policy and Records, National Security Agency 31 Case 1:14-cv-03776-AT Document 43 Filed 12/11/15 Page 1 of 8 THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NEW YORK TIMES COMPANY and CHARLIE SAVAGE Plaintiffs, v. NO. 14-CV-3776 (AT) US. DEPARTMENT OF JUSTICE, Defendant. DECLARATION OF JOHN BRADFORD WIEGMANN I, John Bradford Wiegmann, declare as follows: 1. I am a Deputy Assistant Attorney General in the National Security Division of the United States Department of Justice or ?Department?). NSD is a component of the Department which formally began operations on October 2, 2006, by consolidating the resources of the Of?ce of Intelligence Policy and Review and the Criminal Division?s Counterterrorism Section and Counterespionage Section 2. In my capacity as Deputy Assistant Attorney General, I supervise the Freedom of Information and Declassi?cation Unit which is responsible for responding to requests for access to NSD records and information pursuant to the OIA, 5 U.S.C. 552 and the Privacy Act of 1974. The FOIA and Declassi?cation Unit also processes the NSD records which are responsive to FOIA requests received by other Executive Branch agencies. In addition, I am responsible for overseeing Law and Policy Of?ce, which implements Department of Justice policies with regard to intelligence, counterterrorism, and other national security matters and provides legal assistance and advice on matters of national security law. The statements Case 1:14-cv-03776-AT Document 43 Filed 12/11/15 Page 2 of 8 contained in this declaration are based upon my personal knowledge, information provided to me in the course of my of?cial duties, and determinations I have made following a review of potentially responsive documents 3. On or about January 31, 2014, plaintiffs submitted a Freedom of Information Act request to the Department of Justice?s Of?ce of the Inspector General and asked for the ?full, currently classi?ed joint IG report on the President?s surveillance program that was mandated by Title of the FISA Amendments Act.? On or about February 18, 2014, plaintiffs submitted another request for ?an updated declassi?cation review and release of all DOJ IG reports issued since Sept. 11, 2001, pertaining to surveillance and data collection.? 4. On or about August 21, 2014, OIG referred to NSD a joint report, dated July 10, 2009 and prepared by the Of?ces of the Inspectors General of the Department of Defense DOJ, Central Intelligence Agency and National Security Agency and the Of?ce of the Director of National Intelligence As relevant to my declaration, this report discussed discovery issues in terrorism cases in which information was derived from NSA collection. NSD asked OIG to withhold portions of Volume of this document pursuant to FOIA Exemption These portions are addressed in the chart below. Page number of Volume of the Exemption Joint IG Report 1. p. 336, third full paragraph Attorney Work Product Privilege p. 337, ?rst two full paragraphs p. 339, third full paragraph p. 340, top of the page E-90-9l) Case 1:14-cv-03776-AT Document 43 Filed 12/11/15 Page 3 of 8 r2. pp. 342-46 (E-93-97)l Attorney-Client Privilege, Attorney Work Product Privilege, Deliberative Process Privilege 3. pp. 358-59 last paragraph on page Attorney-Client Privilege, Attorney Work 358 and ?rst two paragraphs on page Product Privilege, Deliberative Process Privilege 359 10) Exemption @115} 5. NSD has determined that the withheld portions are exempt from disclosure pursuant to FOIA Exemption FOIA Exemption protects ?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). This exemption protects records which would normally be privileged in the civil discovery context. 6. Among the privileges incorporated into Exemption 5 is the attorney-client privilege. The attorney-client privilege concerns con?dential communications between an attorney and his/her client pertaining to a legal matter for which the client has sought the attorney?s counsel. This privilege?s purpose is to encourage attorneys and their clients to communicate fully and honestly without fear of embarrassment and other harms. Particularly in the context of government attorneys, the privilege further serves to promote the public interest in the observance of law and administration of justice. 7. In this case, most of the withheld portions of this document discuss a memorandum drafted by Patrick Rowan (?Rowan At that time, Rowan was Counsel This is the numbering system plaintiffs assigned to the documents. 2 All of the withheld material discusses the Rowan Memo with the exception of certain portions of pages 336-337 (E-87-88) and pages 339-340 (E-90-9l) and footnote 422 on page 346 (E-97) of Volume of the Joint 10 Report, as discussed more fully below. 3 Case 1:14-cv-03776-AT Document 43 Filed 12/11/15 Page 4 of 8 to the Assistant Attorney General for the Criminal Division. The withheld portions of the report discuss legal advice in the Rowan Memo prepared by Rowan for an Assistant Attorney General who represented the client, the United States of America. The withheld portions reveal Rowan?s views on questions of law regarding discovery issues related to the Stellarwind surveillance program. Rowan?s views were sought by a decision?maker for the Government to obtain legal advice on those questions of law, and indeed re?ect such advice. This advice furthermore was intended to be, and was in fact, kept con?dential; it was never publicly disclosed, and has been accessed only by US. Government and Congressional of?cials and staff working on the issues addressed by the report. The limited factual material in the sections of the Rowan Memo that are discussed is closely intertwined with Rowan?s analysis and was communicated for the purpose of providing legal advice. The withheld portions are therefore protected by the attorney-client privilege. 8. Further, the redacted portions of footnote 422 on page 346 are also protected by the attomey-client privilege. That footnote is partially redacted because it reveals legal advice provided by a Department attorney to his client, another government entity, regarding discovery issues in criminal cases. This legal advice was intended to be, and was in fact, kept confidential; it has never been publicly disclosed. Because the withheld information constitutes confidential legal advice, it is protected from disclosure under FOIA Exemption 9. In addition, the withheld portions of the report are protected by Exemption 5 under the work product privilege, which protects documents prepared as part of, or in reasonable Case Document 43 Filed 12/11/15 Page 5 of 8 anticipation of, litigation. The purpose of the privilege is to protect the adversarial process by insulating the attorney?s preparation of litigation materials, and the mental impressions, conclusions, opinions, or theories of an attorney or other representative of a party concerning the litigation. 10. In this case, as noted above, most of the withheld portions of the report discuss the Rowan Memo. Rowan drafted this memorandum in reasonable anticipation of litigation. Speci?cally, the Rowan Memo addresses discovery issues that had arisen from the Stellarwind surveillance program, and it was prepared because these discovery issues were expected to arise again in then pending criminal prosecutions. The memorandum sets out the conclusions, opinions, and legal theories of a Department attorney on this issue. Further, the Government has not disclosed the Rowan Memo, or any part of the memo described in the withheld portions of the report, to the public, and, as a result, there has been no waiver of privilege. Because the Rowan Memo would be protected in civil discovery pursuant to the work product privilege, the withheld portions of the report on pages 342-346 and 358-359, whichreveal the content of the memorandum, are protected from disclosure by FOIA Exemption 5. 11. Additionally, the withheld portions of footnote 422 are protected by the work product privilege. These redacted portions discuss a Department attorney?s recommendation on how best to comply with the Govemment?s discovery obligations in pending criminal prosecutions. The Department attorney?s recommendation re?ects certain of the attorney?s mental impressions, opinions, and conclusions concerning the Government?s discovery obligations in these cases and would be protected in civil discovery. In addition, the Government has not disclosed this recommendation to the public, and, therefore, no privileges 5 Case 1:14-cv-03776-AT Document 43 Filed 12/11/15 Page 6 of 8 have been waived. It is therefore protected by the work product privilege. 12. The withheld portions of the report on pages 336-3 37 and pages 339-340 are also protected by the work product privilege and exempt under OIA Exemption These withheld portions are located in the third paragraph of page 336, the ?rst two full paragraphs on page 337, the third full paragraph on page 339, and at the top of page 340. They reveal the mental impressions and conclusions of a Department attorney regarding discovery issues pertaining to pending criminal litigation. Additionally, the Government has not disclosed any of these impressions or conclusions to the public, and, as a result, there has been no waiver of privilege. The withheld material on pages 336-337 and pages 339?340 are therefore protected by the work product privilege. 13. The portions of the report discussing the sections of the Rowan Memo are also protected by Exemption 5 under the deliberative process privilege. The purpose of this privilege is to prevent injury to the quality of agency decision?making. Thus, material that contains or was prepared in connection with the formulation of Opinions, advice, evaluations, deliberations, policies, proposals, conclusions, or recommendations may properly be withheld. Disclosure of this type of information would have an inhibiting effect upon agency decision-making and the development of policy because it would chill full and frank discussions between agency personnel and decision-makers regarding a decision. If agency personnel know that their preliminary impressions, opinions, evaluations, or comments will be released for public consumption, they will be less candid and more circumspect in expressing their thoughts, which will impede the full discussion of issues necessary to reach a well-reasoned decision. 14. In order to invoke the deliberative process privilege, the protected information 6 Case 1:14-cv-03776-AT Document 43 Filed 12/11/15 Page 7 of 8 must be both ?pre?decisional? and ?deliberative.? Information is ?pre-decisional? if it temporally precedes the decision or policy to which it relates. It is ?deliberative? if it played a direct part in the decision-making process because it consists of recommendations or opinions on legal or policy matters, or re?ects the give-and-take of the consultative process. 15. In this case, the withheld portions of the report which discuss the Rowan Memo are ?pre?decisional? because that memorandum preceded a ?nal decision regarding the Government?s ultimate position on the discovery issues raised by the Stellarwind surveillance program. In addition, the withheld portions are ?deliberative? because the sections of the memorandum they discuss re?ect ongoing deliberations by a government attorney on how to address discovery issues raised by an NSA surveillance program. The portions describe the views and recommendations of a Department attorney as part of a process to assist the government?s decision-making prior to an ultimate decision, and as part of the exchange of ideas and suggestions that accompanies careful and reasoned decision-making. This information has never been publicly disclosed. The limited factual material in the sections of the memoranda that are discussed is closely intertwined with Rowan?s analysis and cannot be segregated. Case Document 43 Filed 12/11/15 Page 8 Of 8 Pursuant to 28 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 11th day of December, 2015. Case 1:14-cv-03776-AT Document 44 Filed 12/11/15 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES COMPANY, and CHARLIE SAVAGE, Plaintiffs, v. Case No. 1:14-cv-3776 (AT) UNITED STATES DEPARTMENT OF JUSTICE, Defendant. DECLARATION OF DOUGLAS R. HIBBARD I, Douglas R. Hibbard, declare the following to be true and correct: 1. I am the Senior Advisor of the Initial Request (IR) Staff of the Of?ce of Information Policy (OIP), United States Department of Justice. In this capacity, I am responsible for supervising the handling of the Freedom of Information Act (FOIA) requests processed by OIP. The IR Staff of OIP is responsible for processing FOIA requests seeking records from within OIP and from six senior leadership of?ces of the Department of Justice, speci?cally the Of?ces of the Attorney General (OAG), Deputy Attorney General (ODAG), Associate Attorney General (OASG), Legal Policy (OLP), Legislative Affairs (OLA), and Public Affairs (OPA). The IR Staff determines whether records responsive to access requests exist and, if so, whether they can be released in accordance with the FOIA. In processing such requests, the IR Staff consults with personnel in the senior leadership of?ces and, when appropriate, with other components within the Department of Justice (?Department?), as well as with other Executive Branch agencies. Case 1:14-cv-03776-AT Document 44 Filed 12/11/15 Page 2 of 5 2. I make the statements herein on the basis of personal knowledge, as well as on information acquired by me in the course of performing my of?cial duties.OIP?s Involvement in the Instant Litigation. 3. On December 29, 2014, OIP was contacted as part of an interagency review and redaction process connected with the intended partial release to Plaintiffs of a classi?ed three- volume Inspector General Report, titled Report on the President ?5 Surveillance Program, No. 2009-0013-A, Of?ces of Inspector General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, Of?ce of the Director of National Intelligence (July 10, 2009) (?Joint IG Report?). As part of this process, OIP and other agencies and components undertook to propose redactions for those portions of the Joint IG Report that are exempt from release under the FOIA and not apprOpriate for discretionary release.l Overview of Material Withheld on Behalf OIP 4. This declaration concerns material in the Joint IG Report that has been redacted because it re?ects legal analysis and internal executive branch legal deliberations between the Department of Justice and the White House, related to a classi?ed foreign intelligence program known as the President?s Surveillance Program All of these legal analyses and deliberations were part of internal executive branch decisionmaking regarding the PSP. The following describes the challenged redacted material:2 I OIP reviewed the material on behalf of the Of?ce of the Attorney General. 2 This declaration addresses only that material on the referenced pages which has been indicated as withheld pursuant to FOIA Exemption 5, by way of markings that say and not addressed by the declarations of others. It is my understanding that the redactions marked and/or which are in some places coextensive with the Exemption 5 redactions, are addressed by the declarations of others. See Declarations of David J. Sherman, David M. Hardy, and Mary E. Wilson, ?led contemporaneously herewith. Case 1:14-cv-03776-AT Document 44 Filed 12/11/15 Page 3 of 5 5. Joint IG Report, Vol. I, at 46 n.14 and Vol. at 147; E-291 and E-351: This material consists of a description of an analysis, by the Attorney General to the Counsel to the President regarding a statement in the March 11, 2004 authorization. 6. Joint IG Report, Vol. I, at 68 and Vol. at 147; E-236 and E-351: This material reveals the content of written and/or oral analysis and opinions from Department of Justice attorneys to the White House Counsel regarding the PSP. Explanation of Withheld Information: Exemption 5 7. Exemption 5 of the FOIA exempts from mandatory 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). The withholdings discussed in this document challenged under Exemption 5 by Plaintiffs are protected under the deliberative process privilege. The deliberative process privilege is intended to protect the decisionmaking processes of government agencies from public scrutiny in order to enhance the quality of agency decisions. In order to invoke the deliberative process privilege, the protected information must be both ?pre-decisional? and ?deliberative.? 8. The information withheld from Plaintiffs consists of communications generated by, exchanged within, and internal to the Executive Branch. As such, the information quali?es as ?inter-agency and intra-agency? documents within the threshold of FOIA Exemption 5. 9. The information addressed by this declaration is limited to portions of certain redactions taken pursuant Exemption 5. With regard to excision E-29l this declaration addresses one portion of that excision, with the remainder of E-291 being addressed in the Declaration of Paul Colborn (OLC). With regard to excision E-236, this declaration further Case 1:14-cv-03776-AT Document 44 Filed 12/11/15 Page 4 of 5 supports the Declaration Paul Colborn insomuch as the information underlying that excision contains equity of interest to both OLC and this Of?ce. 10. The material challenged as E-291, withheld on pg. 46, footnote 14 of Volume I is deliberative because it expresses the opinion and analysis of the Attorney General to the White House Counsel. The material is pre-decisional because the opinion was expressed prior to a ?nal decision being made. (See also Declaration of Paul P. Colborn at 14.) It should be noted that the equity being protected under E-291 is repeated and likewise excised on page 147 of Volume E-35 1 . 11. Likewise, the material challenged as E-236, withheld on page 68 of Volume I is deliberative because it demonstrates Department of Justice concerns and conclusions about the PSP program expressed to the White House. The material is pre-decisional because the concerns were expressed prior to a ?nal decision being made. (See also Declaration of Paul P. Colborn at 14.) Similar to E-291, the equity being protected under E-236 is repeated and likewise excised on page 147 of Volume E-251. 12. None of the material identi?ed in the paragraphs above contains reasonably segregable, nonexempt information. 13. To my knowledge, none of the material identi?ed in these paragraphs was disclosed in the unclassi?ed, publicly released version of the Joint IG Report. In addition, I am not aware of any public statements by government of?cials that could constitute waiver of the deliberative process privilege with respect to the material identi?ed in these paragraphs. 14. None of the material identi?ed in these paragraphs is appropriate for discretionary release. Case Document 44 Filed 12/11/15 Page 5 of 5 15. In sum, release of such information would inhibit the frank discussion between Executive Branch of?cials. It is imperative that internal deliberations such as these not be inhibited by concern of public disclosure. I declare under penalty of perjury that the foregoing is true and correct. jaw/2:? Douglas R. Hibbard Executed this 11th day of December 2015. Case Document 45 Filed 12/11/15 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, Plaintiffs, Case No. 1:14-cv-3776 (AT) v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. DECLARATION OF PAUL P. COLBORN I, Paul P. Colborn, declare as follows: 1. I am a Special Counsel in the Of?ce of Legal Counsel of the United States Department of Justice (the ?Department?) and a career member of the Senior Executive Service. I joined OLC in 1986, and since 1987 I have had the responsibility, among other things, of supervising responses to requests it receives under the Freedom of Information Act 5 U.S.C. 552. I submit this declaration in support of the Department?s Motion for Summary Judgment in this case. The statements that follow are based on my personal knowledge, as well as on information provided to me by OLC attorneys and staff working under my direction, and by others with knowledge of the documents at issue in this case. CONFIDENTIALITY OF OLC ADVICE 2. The principal function of OLC is to assist the Attorney General in her role as legal adviser to the President of the United States and to departments and agencies of the executive branch. OLC provides advice and prepares opinions addressing a wide range of legal questions involving the operations of the executive branch. OLC does not purport, and in fact lacks Case Document 45 Filed 12/11/15 Page 2 of 18 authority, to make policy decisions. legal advice and analysis may inform the decisionmaking of executive branch of?cials on matters of policy, but 3 legal advice does not dictate the policy choice to be made. 3. The President and other executive branch of?cials (like other public? and private?sector clients) often depend upon the con?dentiality of legal advice in order to ful?ll their duties effectively. One important reason OLC legal advice may need to remain con?dential is that it often constitutes part of a larger deliberative process?a process that itself requires con?dentiality to be effective. The Supreme Court long ago recognized that ?ef?ciency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to coperate in a ?shbowl.? Envtl. Protection Agency v. Mink, 410 U.S. 73, 87 (1973) (quoting S. Rep. No. 89-813, at 9 (1965)). In my experience, these concerns apply with particular force at OLC, where attorneys are often asked to provide advice and analysis with respect to very dif?cult and unsettled issues of law. Frequently, such issues arise in connection with highly complex and sensitive operations of the executive branch, on matters that can be quite controversial. To ensure the candor of executive branch deliberations and to encourage executive branch of?cials to continue to request and rely on legal advice from OLC on sensitive matters, it is essential that OLC legal advice provided in the context of internal deliberations, as well as deliberative communications made in connection with the preparation of its advice, not be inhibited by concerns about public disclosure. 4. In addition to these deliberative interests, the need to protect the relationship of trust between OLC and client agencies or of?ces that seek its legal advice provides a second reason that OLC legal advice may need to remain con?dential. As the Supreme Court has observed: ?The attomey-client privilege is the oldest of the privileges for con?dential Case Document 45 Filed 12/11/15 Page 3 of 18 communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.? Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The law generally protects the special relationship of trust between a client and an attorney when the one seeks and the other provides independent legal advice. If the request for advice is made in con?dence, both the request and advice are protected from compelled disclosure. Id. at 390 privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice?). Based on my experience over almost 30 years at OLC, I believe that the prospect of compelled disclosure of legal advice and con?dential information that client agencies communicate to OLC, would chill the full and frank communications necessary between and among attorneys and their clients and inhibit both the willingness of clients to seek legal advice and disclose con?dences to OLC and also the complete and candid nature of the legal advice that OLC provides. 5. Some of the legal advice OLC provides to the President and executive branch agencies is presented in the form of a formal legal opinion. It is practice to review these opinions at some point after they have been provided to the client in order to determine whether they may be appropriate for publication. See Memorandum for Attorneys of the Of?ce, from David J. Barron, Acting Assistant Attorney General, Re: Best Practices for OLC Legal Advice and Written Opinions at 5-6 (July 16, 2010) (?Best Practices?), available at Although the Of?ce operates from a presumption in favor of making its signi?cant opinions fully and available to the public where possible, id. at 5, countervailing considerations may lead the Of?ce to conclude that Case Document 45 Filed 12/11/15 Page 4 of 18 it would be inappropriate to publish an opinion that otherwise would merit publication, id. at 5-6. For example, OLC will decline to publish an opinion when disclosure would reveal classi?ed or other sensitive information relating to national security, or if doing so would interfere with federal law enforcement efforts or would be prohibited by law. However, will [also] decline to publish an opinion when doing so is necessary to preserve internal executive branch deliberative processes, or to protect the con?dentiality of information covered by the attorney-client relationship between OLC and other executive of?ces.? Id. Although publication represents a waiver of the privileges that apply to that particular opinion, that discretionary decision to publish does not waive the privileges that protect other con?dential legal advice provided by OLC. MATERIAL AT ISSUE 6. On December 29, 2014, OLC was contacted as part of an interagency review and redaction process connected with the intended partial release to Plaintiffs of a classified three?volume Inspector General Report, titled Report on the President ?5 Surveillance Program, No. Offices of Inspector General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, Office of the Director of National Intelligence (July 10, 2009) (?Joint IG Report?). As part of this process, OLC and other agencies and components undertook to propose redactions for those portions of the Joint IG Report that are exempt from release under the FOIA and not appropriate for discretionary release. 7. This declaration concerns material in the Joint IG Report that has been redacted because it quotes, paraphrases, or otherwise describes the content of a number of unpublished OLC opinions and memoranda, or quotes, paraphrases, or otherwise describes legal analyses and oral advice, as well as internal executive branch legal deliberations, related to a classi?ed foreign intelligence program known as the President?s Surveillance Program Case Document 45 Filed 12/11/15 Page 5 of 18 All of these legal analyses, oral advice, and deliberations were part of internal executive branch decisionmaking regarding the PSP. withholding, in whole or in part, of many of these underlying documents containing the advice re?ected in the redacted portions of the Joint IG Report, was previously held to be proper after brie?ng by the United States District Court for the District of Columbia in Elec. Privacy Info. Ctr. v. Dep ?t of Justice, 511 F. Supp. 2d 56 (D.D.C. 2007) 1? or for certain documents, after additional brie?ng and/or in camera review in two later, unpublished decisions in the same case.1 The following describes the challenged redacted material:2 8. Plaintiffs? challenged redactions Joint IG Report, Vol. at 333-59, 402-03: a. Joint IG Report, Vol. at 337; E-88: Portions of this material reveal con?dential, predecisional oral legal advice given by John Yoo, a Deputy Assistant Attorney General (DAAG) in OLC, to the Attorney General in connection with potential policy decisions regarding the PSP. b. Joint IG Report Vol. at 337 n.409, 338-40; E-88 n. 409, E-89 to E-91: This material consists of a detailed summary of an unpublished, con?dential OLC Memorandum, whose date is protected by Exemptions One and Three as addressed in the Elec. Privacy Info. Ctr. v. Dep ?t of Justice, Nos. 06- 096 (HHK), 06?214 (HHK), ECF No. 67, slip op. (Oct. 31, 2008), attached hereto as Exhibit 1 E180. Privacy Info. Ctr. v. Dep 't of Justice, Nos. 06? 096 (RCL), 06?214 (RCL), 2014 WL 1279280 (D.D.C. Mar. 31, 2014) see also Second Redacted Bradbury Declaration, ECF No. 35-1, No. 06-214 (Filed Oct. 19, 2007) (describing several of these documents in detail and identifying in which categories they fell, as referenced in the courts? opinions), attached hereto as Exhibit 2 (?Bradbury EPIC Declaration?). 2 This declaration addresses only that material on the referenced pages which has been indicated as withheld pursuant to FOIA Exemption Five, by way of markings that say and not addressed by the declarations of others. It is my understanding that the redactions marked and/or which are in some places coextensive with the Exemption Five redactions, are addressed by the declarations of others. See Declarations of David J. Sherman and David M. Hardy, ?led contemporaneously herewith. Case 1:14-cv-03776-AT Document 45 Filed 12/11/15 Page 6 of 18 declarations of others, from John Yoo to the Attorney General, providing con?dential predecisional legal advice in connection with potential policy decisions regarding the PSP. 0. Joint IG Report Vol. at 346 n.422; E-97: This material tends to reveal con?dential, predecisional legal advice contained in the OLC Memorandum described supra at ll 8.b. d. Joint IG Report, Vol. at 351, 358, 402-03; E-102, El 12 to E-113: This material consists of quotations from and conclusions of the con?dential, predecisional legal advice contained in the OLC Memorandum described supra at 8b. 9. Plaintiffs? challenged redactions Joint IG Report, Vol. I, at 65?68: a. Joint IG Report, Vol. I, at 68; E-236: This material reveals the content of legal advice from OLC attorneys to the Counsel to the President in connection with potential policy decisions regarding the PSP. 10. Plaintiffs? challenged redactions Joint IG Report, Vol. I, at 12-16: a. Joint IG Report, Vol. I, at 13-14; to E-258: This material consists of a summary of an unpublished, con?dential, predecisional OLC Memorandum, dated October 4, 2001, from John Yoo to the Counsel to the President, providing legal advice in response to a request from the White House for advice regarding legal standards applicable to random electronic surveillance for counter-terrorism purposes. This memorandum was identi?ed in EPIC as OLC 132 and was found to be properly withheld after in camera review. b. Joint IG Report, Vol. I, at 14-15; E-258 to This material consists of a summary of the unreleased portions of a con?dential, predecisional OLC Memorandum, dated November 2, 2001, from John Yoo to the Attorney General, providing legal advice in Case Document 45 Filed 12/11/15 Page 7 of 18 response to a request from the Attorney General for advice in connection with potential policy decisions regarding the PSP. This memorandum has been partially released in redacted form; it was identi?ed as OLC 131 in EPIC and the unreleased portions were found to be properly withheld after in camera review. c. Joint IG Report, Vol. I, at 16; E-260: This material consists of a summary of an unpublished, con?dential, predecisional OLC Memorandum, dated October 11, 2002, from John Yoo to the Attorney General, providing legal advice in connection with potential policy decisions regarding the PSP, as well as OIG analysis of that memorandum that reveals its contents. This memorandum was identi?ed as OLC 129 in EPIC and was found to be properly withheld after in camera review. 1 1. Plaintiffs? challenged redactions Joint IG Report, Vol. I, at 36-50: a. Joint 1G Report, Vol. I, at 36-3 8; E281 to E-283: This material consists of information from Of?ce of Inspector General interviews with Patrick Philbin, a DAAG in OLC, and Jack Goldsmith, the Assistant Attorney General for OLC, in which they discuss con?dential OLC analysis and internal deliberations in the course of formulating legal advice provided in connection with potential policy decisions regarding the PSP during the latter half of 2003. b. Joint 1G Report, Vol. I, at 38 n.11; E-283 n.l 1: This material consists of legal conclusions contained in the unreleased portions of a con?dential, predecisional OLC Memorandum, dated May 6, 2004, from Jack Goldsmith to the Attorney General, providing legal advice in response to a request from the Attorney General that OLC perform a review of the PSP and provide legal advice regarding its operation. This memorandum has been partially released in redacted form; it was identi?ed in EPIC as Case 1:14-cv-03776-AT Document 45 Filed 12/11/15 Page 8 of 18 OLC 54 and the unreleased portions were found to be properly withheld after in camera review. c. Joint IG Report, Vol. I, at 40-41,45; E-285 to E-286, E-290: This material reveals the content of deliberative communications between Patrick Philbin and Jack Goldsmith and the Counsel to the President on several occasions in early March 2004, seeking and providing legal advice in connection with potential policy decisions regarding the PSP. (1. Joint 1G Report, Vol. I, at 46 n.14; E-291 n.14: This material consists of descriptions of the content of a memorandum dated May 20, 2004, from the Attorney General to the Counsel to the President, including a description of internal DOJ deliberations and legal advice given to the Attorney General by Patrick Philbin and Jack Goldsmith in connection with potential policy decisions regarding the PSP. e. Joint IG Report, Vol. I, at 49 n.15; n.15: This material consists of information from Of?ce of Inspector General interviews with Patrick Philbin and Jack Goldsmith, in which they discuss con?dential OLC analysis and internal executive branch deliberations in the course of formulating legal advice in March 2004 in connection with potential policy decisions regarding the PSP. 12. Plaintiffs? challenged redactions Joint IG Report, Vol. II, at 123 and surrounding pages: a. Joint IG Report, Vol. II, at 122 (redacted version attached hereto as Exhibit 3): This material includes descriptions of oral advice given by Patrick Philbin and Jack Goldsmith to executive branch of?cials, as well as a quotation from an OLC Memorandum, dated March 15, 2004, for the Deputy Attorney General from Jack Case Document 45 Filed 12/11/15 Page 9 of 18 Goldsmith, that provides legal advice in connection with potential policy decisions regarding the PSP. This memorandum was identi?ed in EPIC as OLC 64 and the Department was granted summary judgment on its withholding (Slip Op. at 2). b. Joint IG Report, Vol. II, at 123; E-297: This material describes advice contained in the OLC Memorandum described supra at 11 12a, dated March 15, 2004, providing legal advice in connection with potential policy decisions regarding the PSP. 0. Joint IG Report, Vol. II, at 123 n.25; 13-297 n.25: This material describes the contents of part of an unpublished, con?dential, predecisional OLC Memorandum, dated July 16, 2004, from Jack Goldsmith to the Attorney General, providing legal advice regarding the implications of a Supreme Court decision for the PSP. This memorandum was identi?ed in EPIC as OLC 85 and was found to be properly withheld after in camera review. 13. Plaintiffs? challenged redactions Joint IG Report, Vol. at 25-42, 104-17, 122-33, 142-28, 158?86: a. Joint IG Report, Vol. at 25-27; E-299-301: This material consists of a more detailed summary of the unreleased contents of the legal advice contained in the OLC Memorandum, dated October 4, 2001, described supra at 1] 10a. b. Joint IG Report, Vol. at 33; E-307 (?rst redaction): This material consists of information from an Of?ce of Inspector General interview with Steven Bradbury, the Principal DAAG of OLC, in which he discusses con?dential OLC legal analysis provided in connection with potential policy decisions regarding the PSP. Case 1:14-cv-03776-AT Document 45 Filed 12/11/15 Page 10 of 18 0. Joint IG Report, Vol. at 33-34, 37; 13-307 to E-308, E-311: This material consists of a more detailed summary of the unreleased contents of the legal advice contained in the OLC Memorandum, dated November 2, 2001, described supra at 11 10.b. d. Joint IG Report, Vol. at 39; E-313: This material consists of a description of the contents of an unpublished, con?dential, predecisional OLC Memorandum, dated January 9, 2002, from John Yoo to the Attorney General, providing legal advice in support of the Attorney General?s regular review of the legality of the President?s order reauthorizing the PSP. This memorandum was identi?ed in EPIC II as OLC 115 and was found to be prOperly withheld (Slip Op. at 6. Joint IG Report, Vol. at 39-40; E-313 to E-314: This material consists of a more detailed summary of the unreleased contents of the legal advice contained in the OLC Memorandum, dated October 11, 2002, described supra at 1i 10.b. f. Joint IG Report, Vol. at 104?08, 112-115; E-318 to E-322, to E-329: This material consists of information from Of?ce of Inspector General interviews with Patrick Philbin and Jack Goldsmith, in which they discuss con?dential OLC analysis and internal deliberations in the course of formulating legal advice in connection with potential policy decisions regarding the PSP during the latter half of 2003. g. Joint 1G Report, Vol. at 116; E-330: This material consists of a description of oral legal advice delivered in December 2003 by Patrick Philbin and Jack Goldsmith to the Counsels to the President and Vice President in connection with potential policy decisions regarding the PSP. h. Joint IG Report, Vol. at 122?23; to E-334: This material consists of a description of oral legal advice delivered on March 5, 2004, by Patrick Philbin and 10 Case 1:14-cv-03776-AT Document 45 Filed 12/11/15 Page 11 of 18 Jack Goldsmith to the Counsels to the President and Vice President in connection with potential policy decisions regarding the PSP. i. Joint IG Report, Vol. at 124 n. 143; E-335 n.143 (last sentence): This material consists of information from Office of Inspector General interviews with Patrick Philbin and Jack Goldsmith, in which they discuss con?dential OLC analysis and internal deliberations in the course of formulating legal advice in early March 2004 provided in connection with potential policy decisions regarding the PSP. j. Joint IG Report, Vol. at 125 n.147; E-336 n.147; This material consists of a description of oral legal advice delivered by Patrick Philbin and Jack Goldsmith to the Deputy Attorney General on March 6, 2004, and then to the Counsels to the President and Vice President on the same date in connection with potential policy decisions regarding the PSP. k. Joint IG Report, Vol. at 126 n.148; E-337 n.148 (second sentence): This material consists of information from Of?ce of Inspector General interviews with Patrick Philbin and Jack Goldsmith, in which they discuss con?dential OLC analysis and internal deliberations in early March 2004 in the course of formulating legal advice provided in connection with potential policy decisions regarding the PSP. 1. Joint IG Report, Vol. at 129 n.154, 131; n.154, E4342: This material consists of information from Of?ce of Inspector General interviews with Patrick Philbin and Jack Goldsmith, in which they discuss con?dential OLC analysis and internal deliberations in the course of formulating legal advice for their executive branch clients identi?ed on Vol. p.128; E-339, along with con?dential communications from those clients, as well as descriptions of the content of oral legal advice Philbin and Goldsmith 11 Case 1:14-cv-03776-AT Document 45 Filed 12/11/15 Page 12 of 18 provided to those clients on March 9, 2004 and to the Acting Attorney General on March 10, 2004, in connection with potential policy decisions regarding the PSP. 111. Joint IG Report, Vol. at 142; E-346: This material consists of a summary of oral legal advice that Jack Goldsmith provided to the Counsel to the President on March 11, 2004, in connection with potential policy decisions regarding the PSP. n. Joint IG Report, Vol. at 146-48; to E-352: This material consists of a description of the content of con?dential OLC analysis and internal deliberations, and written and oral legal advice that Patrick Philbin and Jack Goldsmith provided to the Attorney General and the Counsel to the President in 2003 and 2004, in connection with potential policy decisions regarding the PSP. 0. Joint 1G Report, Vol. at 158; E-3 54: This material consists of quotations from and summaries of an unpublished, con?dential, predecisional OLC Memorandum, dated March 12, 2004, to the Acting Attorney General from Jack Goldsmith providing legal advice in connection with potential policy decisions regarding the PSP. This memorandum was identi?ed in EPIC II as OIPR 139 and was found to be properly withheld (Slip Op. at 8-9). p. Joint IG Report, Vol. at 159?63; E-355 to E-359: This material consists of summaries of the content of a draft legal advice outline prepared by ack Goldsmith and Patrick Philbin, in order to provide legal advice in connection with potential policy decisions regarding the PSP, as well as information from Of?ce of Inspector General interviews with Philbin and Goldsmith, in which they discuss con?dential OLC analysis and internal deliberations in the course of formulating the outline and accompanying legal advice. The outline was provided to the group of executive branch of?cials at the meeting 12 Case Document 45 Filed 12/11/15 Page 13 of 18 on March 14, 2004, described on Vol. p. 159; E-355, and oral advice was given by those OLC attorneys at that meeting based on the outline. This outline was identi?ed in EPIC II as OLC 126 and the Department was granted summary judgment on its withholding (Slip Op. at 2). q. Joint IG Report, Vol. at 170-72; 13-366 to This material consists of information from Of?ce of Inspector General interviews with Jack Goldsmith, Patrick Philbin, and Steven Bradbury, in which they discuss con?dential OLC analysis and internal deliberations in the course of formulating legal advice for the Counsel to the President in March 2004 in connection with potential policy decisions regarding the PSP. r. Joint IG Report, Vol. at 172; 13-368: This material consists of descriptions of the solicitation and provision of oral OLC legal advice provided in connection with potential policy decisions regarding the PSP by and to the FBI General Counsel, and includes quotations from an OLC Memorandum dated March 22, 2004, to the Deputy Attorney General from Jack Goldsmith, summarizing that oral advice. This memorandum was identi?ed in EPIC II as OLC 1 14 and was found to be properly withheld (Slip Op. at 5. Joint IG Report, Vol. at 173?74; E-369 to E-370: This material consists of a summary of an OLC Memorandum by Jack Goldsmith, dated March 24, 2004, containing legal advice to Department of?cials in connection with potential policy decisions regarding the PSP. t. Joint IG Report, Vol. at 175; This material consists of a summary of an OLC Memorandum to the ?le, dated April 5, 2004, by Jack Goldsmith, memorializing oral legal advice given to the Counsel to the President and the NSA Of?ce 13 Case 1:14-cv-03776-AT Document 45 Filed 12/11/15 Page 14 of 18 of General Counsel on March 26, 2004, in connection with potential policy decisions regarding the PSP. 11. Joint IG Report, Vol. at 176-77; E-372 to E3 73: This material consists of information from an Of?ce of Inspector General interview with Jack Goldsmith, in which he discusses con?dential OLC analysis and internal executive branch deliberations in the course of formulating legal advice provided in connection with potential policy decisions regarding the PSP, as well as quotations from and summaries of two draft OLC Memoranda from Jack Goldsmith, one undated to the Attorney General and one dated March 26, 2004 to the Counsel supervising the Of?ce of Intelligence Policy and Review (OIPR) containing legal advice and analysis provided in connection with potential policy decisions regarding the PSP, and shared in con?dence with the presiding judge on the Foreign Intelligence Surveillance Court (FISC). The undated memorandum, an early draft of the memorandum described supra at 11 Mb, was identi?ed as OLC 55 in EPIC I and found to be properly withheld. 511 F. Supp. 2d at 69; see also Bradbury EPIC Declaration at 78. V. Joint 1G Report, Vol. at 179; E-375: This material consists of information from Of?ce of Inspector General interviews with Patrick Philbin, Steven Bradbury, and Deputy Attorney General James Corney, in which they discuss con?dential OLC analysis and internal deliberations in the course of formulating legal advice provided in connection with potential policy decisions regarding the PSP, as well as a description of the content of internal executive branch deliberations and oral legal advice that Jack Goldsmith provided to the Counsel to the Vice President in March and April 2004 in connection with potential policy decisions regarding the PSP. 14 Case 1:14-cv-03776-AT Document 45 Filed 12/11/15 Page 15 of 18 w. Joint IG Report, Vol. at 182 n.21l; n.211 (middle sentence): This material consists of information from Of?ce of Inspector General interviews with Steven Bradbury, in which he discusses con?dential OLC analysis and internal deliberations in the course of formulating legal advice in 2005 for the Counsel to the President provided in connection with potential policy decisions regarding the PSP. x. Joint IG Report, Vol. at 183?86; E-3 79 to E3 82: This material consists of a detailed summary of unreleased content of the OLC Memorandum dated May 6, 2004, described supra at 1] 1 Lb. WITHHOLDING UNDER EXEMPTION FIVE l4. Exemption Five exempts from mandatory 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). Exemption Five incorporates the traditional privileges that the government may assert in civil litigation against a private litigant and exempts from reach documents covered by such privileges. The Department has inv'oked Exemption Five for the material identi?ed in paragraphs 8 to 13 because it is protected by the deliberative process and attorney-client privileges. 15 . The memoranda and legal advice issued by OLC or by OLC attorneys (as identi?ed in paragraphs 8 to 13) are protected by the deliberative process privilege because they are pre?decisional and provided advice as part of an executive branch deliberative process. The advice is pre-decisional because it was prepared for the consideration of executive branch of?cials or the President?s Counsel to aid the President in deciding whether to authorize or reauthorize particular activity. The material is deliberative because it constitutes legal advice from OLC or OLC attorneys to executive branch decisionmakers for use in the deliberations over 15 Case Document 45 Filed 12/11/15 Page 16 of 18 whether to authorize those activities and because they re?ect the give-and-take and candor of an executive branch deliberative process. The limited factual material contained in the withheld portions of the memoranda and oral advice is closely intertwined with the advice and analysis that the memoranda and advice conveyed. Compelled disclosure of the contents of the memoranda or advice would undermine the deliberative processes of the President and the executive branch. Attorneys at OLC are often asked to provide advice and analysis with respect to very dif?cult and unsettled questions of law, and on matters that can be quite controversial. It is essential to the President in carrying out his mission and to the proper functioning of the executive branch overall that legal advice not be inhibited by concerns about the risk of public disclosure. Protecting the con?dentiality of legal advice provided in the context of presidential (or other executive branch) deliberations is essential both to ensure that creative and sometimes controversial legal arguments and theories may be examined candidly, effectively, and in writing, and to ensure that the President, his advisers, and other executive branch of?cials continue to request and rely on frank legal advice from OLC on sensitive matters. 16. The material identi?ed in paragraphs 8 to 13 is also protected by the attorney-client privilege. The legal advice from OLC attorneys was requested by the Counsel to the President and other executive branch of?cials, and the advice was communicated in con?dence by OLC attorneys to those clients, both orally and in writing. The limited factual material contained in the memoranda was provided in con?dence to OLC by clients for purposes of obtaining con?dential legal advice. Having been asked to provide legal advice, OLC attorneys stood in a special relationship of trust with the President and his Counsel, and with the other clients seeking legal advice. Just as disclosure of client con?dences in the course of seeking legal advice would 16 Case Document 45 Filed 12/11/15 Page 17 of 18 seriously disrupt the relationship of trust so critical when attorneys formulate legal advice to their clients, so too would disclosure of the legal advice itself undermine that trust. 17. Moreover, the thoughts and recollections shared by OLC attorneys in interviews with the Of?ce of Inspector General, describing con?dential OLC analysis and internal deliberations in the course of formulating legal advice for various clients within the executive branch, are also protected by the deliberative process and attorney-client privileges. Although the interviews were conducted after the fact, the OLC attorneys described internal executive deliberations in detail, including their own thoughts and legal analyses that may have incorporated client con?dences and in some cases may have been provided to clients as part of advice. This material is especially sensitive because it tends to reveal not just role in the executive branch?s deliberative processes, but also the deliberative processes within OLC and even the mental processes of individual attorneys regarding potential advice. 18. It is important to re?ect on the adverse consequences that compelled disclosure of the material described herein would in?ict on executive branch deliberative processes and attorney?client relationships. As discussed above, such forced disclosure would seriously undermine substantial con?dentiality interests of the executive branch (and in this case, of the President) in receiving full and frank advice from legal advisers. If the con?dentiality of such advice is readily breached, the President and other executive branch of?cials will be reluctant to continue to request and rely on legal advice from OLC on sensitive matters?a result that would undermine the public?s interest in an executive branch that strives to abide by the rule of law. Moreover, own deliberative processes would be seriously impaired by the release of its internal deliberations, in turn damaging executive branch deliberations. 17 Case Document 45 Filed 12/11/15 Page 18 of 18 19. None of the material identi?ed in paragraphs 8 to 13 contains reasonably segregable, nonexempt information. 20. To my knowledge, the material identi?ed in paragraphs 8 to 13 has never been adopted or incorporated by reference by any policymaker as a basis for a policy decision. 21. To my knowledge, none of the material identi?ed in paragraphs 8 to 13 was disclosed in the unclassi?ed, publicly released version of the Joint IG Report. In addition, I am not aware of any public statements by government of?cials that could constitute waiver of the deliberative process or attomey-client privileges with respect to the material identi?ed in paragraphs 8 to 13. 22. None of the material identi?ed in paragraphs 8 to 13 is appropriate for discretionary release. 23. In sum, I respectfully submit that the materials described herein are covered in full or in part by the deliberative process and attorney-client privileges. Thus, the materials fall squarely within FOIA Exemption Five. The compelled disclosure of this material would seriously harm the deliberative processes of the government, disrupt the attorney-client relationship between OLC and the Of?ce of the Counsel to the President and other Executive Branch clients, and undermine the con?dentiality of the Executive Branch?s decisionmaking process. I declare under penalty of perjury that the foregoing is true and correct. Executed: December 11, 2015 PAUL P. COLBORN 18 Case 1:14-cv-03776-AT Document 46 Filed 12/11/15 Page 1 of 2 PREET BHARARA United States Attorney for the Southern District of New York By: TARA M. La MORTE ELIZABETH M. TULIS Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW {0ng THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, Plaintiffs, 14 Civ. 3776 (AT) V. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. DECLARATION OF TARA M. La MORTE Tara M. La Morte, pursuant to the provisions of 28 U.S.C. 1746, declares, under penalty of perjury, as follows: 1. I am an Assistant United States Attorney in the of?ce of Preet Bharara, United States Attorney for the Southern District of New York, attorney for the defendant in this case. I am an attorney assigned to the defense of this matter. 2. I submit this declaration in support of defendant United States Department of Justice?s cross-motion for summary judgment. Case Document 46 Filed 12/11/15 Page 2 0f 2 3. Attached as Exhibit A hereto is a true and correct copy of a chart that I created that re?ects the Government?s withholdings challenged by plaintiffs in this Freedom of Information Act case, the agencies invoking FOIA exemptions with respect to those withholdings, and the FOIA exemptions invoked. This chart was prepared to assist the Court in adjudicating the parties? cross-motions for summary judgment. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York December 1 1, 2015 PREET BHARARA United States Attorney for the Southern District of New York By: xfs/ Mi La M0316 TARA M. La MORTE Assistant United States Attorney 86 Chambers Street, Third Floor New York, New York 10007 Tel: (212) 637-2746 Fax: (212) 637-2702 Email: tara.lamorte2@usdoj . gov Case 1:14-cv-03776-AT Document 46-1 Filed 12/11/15 Page 1 of 7 CHART LISTING AGENCY Challenged NSA FBI2 OLC CIA NSD OIP Redactions Joint Report Vol. I E-77 (53) B1, B3 B1, B3, B7E: (1St two redactions) E-78 (54) B1, B3 E-233 (65B6, B7C, B7E E-234 (66B6, B7C, B7E E-235 (67) B6, B7C, B7E E-236 (68E-256 (12) E-257 (13) B5 E-258 (14) B5 E-259 (15) B5 E-260 (16) B3 B5 E-262 (25) B1, B3 E-263 (26) B3 E-265 (28) B1, B3, B7E (36- B1, B3 B5 38) E-285-286 (40? B1, B3 B5 1 This chart is provided to clarify which agency (or agencies) has asserted FOIA exemption(s) with respect to the redactions challenged in this case. While this chart lists the exemptions claimed by each agency on a page?by-page basis, oftentimes a single page contains multiple redactions. An agency may not have asserted an exemption over each and every redaction appearing on a page, and/or may have asserted different exemptions for different redactions appearing within a single page. However, viewing this chart in conjunction with Plaintiffs? ?led excerpts (which represent the universe of redactions they are challenging in this case) and the Govemment?s declarations will assist the Court in assessing the FOIA exemption(s) the Government asserts warrants the continued protection of a particular redaction, as well as the agency or agencies that have invoked the exemption(s). 2 The OIA exemptions asserted by the FBI appear in the margins of the excerpted pages ?led by Plaintiffs. Each of the exemptions claimed by the other agencies are indicated in the redacted boxes themselves. Case 1:14-cv-03776-AT Document 46?1 Filed 12/11/15 Page 2 of 7 B6, B7C, Challenged NSA FBI2 OLC CIA NSD OIP Redactions 41) E-287 (42) B1, B3 E-290 (45) B1, B3 B5 E-291 n.14 (46 B5 B5 11. 14) E-292 (47) B1, B3 B1, B3, B7B: (second redaction only) (48) B1, B3 E-294 (49) BI, B3 B5 (at n.15 only) E-295 (50) B1, B3 Joint I Regan Vol. II E-238 (99) B1, B3 E-239-241 (100- B1, B3 B1, B3, 102) B6, B7C, B7D E-267 (165) B3 E-297 n.25 B5 (123 n.25) E-297 (123) B1, B3 B5 (taken surrounding (see at 122 pages Classi?ed n.24 of the Sherman Rep.; not Decl.) included in excerpts, attached as exhibit) Joint IG Regort Vol. E-80-82 (219- B1, B3 21) E-84 (333) E-86 (335) B1, B3 B1, B3, B6, B7C, B7E E-87 (336Case 1:14-cv-03776-AT Document 46-1 Filed 12/11/15 Page 3 of 7 Challenged NSA 13312 OLC CIA NSD OIP Redactions B7E 31,33 31,33, 35 35 36,370, 373 31,33 31,33, 35 36,370, 373 31,33 31,33, 35 35 36,370, 373 3-91 (340) 31,33 31,33, 35 35 36,370, 373 392(341) 31,33 31,33, B6, 370, 373 393?94 (342? 31, 33, 35 43) 36,370, B7E E-95-96 (344? 35 45) 31,33 31,33, 35 35 36,370, 373 33 (011E- 348) 98 only) 3?100?101(349? 31,33 50) 31,33 31,33, 35 36,370, B7E E-103-E-108 31,33 31,33, B1,B3(at (352?357) 36, 370, 3-103) 373 31,33 31,33, 35 35 36,370, B7E 3-110(359) 31,33 31,33, 35 36,370, 373 3-112-113(402- 31,33 31,33, 35 03) 36,370, B7E Case Document 46-1 Filed 12/11/15 Page 4 of 7 Challenged NSA FBI2 OLC CIA NSD OIP Redactions 13243252 (315? B1, B3 B1, B3, 324) 243,245, B249 (321) B1, B3, B1, B3 B7E B250 (322) B1, B3, Bl, B3 B7E B251 (323) B1, B3, B1, B3 B6, B7c, B7B B5 27) (atE- 300) 32) E-307-308 (33? B5 34) B309 (35) B1, B3 B311 (37) B1, B3 B5 B312 (38) B1, B3 B313 (39) B1, B3 B5 E-313-316 (39- B5 (at 42) 313-314 only) B5 108) B323 (109) B1, B3 B325 (111)5 B3 B5 116) B5 26) B338 (127) B1, B3 B6B7C, B7E 3 The Times? excerpts indicate that a B6 redaction was also taken on E-325, but that notation was an inadvertent error. The Government is not asserting B6 over the redactions on this page. Case Document 46-1 Filed 12/11/15 Page 5 of 7 Challenged NSA FBI2 OLC CIA NSD OIP Redactions 13-340 (129) B1, B3 B5 13-342 (131) B1, B3 B5 E-343 (132) B1, B3 13-344 (133) B1, B3 B1, B3 E-346 (142) B1, B3 B5 13-349 (145) B1, B3 B5 B5 (atE- 48) 351) 13-354 (158) B5 B5 63) 69) B5 172) 367?368) B5 174) 369) 3371 (175) B5 B7E (176- B5 77) 13-374 (178) B1, B3 B375 (179) B1, B3 B5 E-376 (180) B1, B3 B378 (182) B1, B3 B5 (at 11.211) B5 B1,B3(at 186) E-381) FBI Section 215 Revi?l E-115-116, 118, B1, B3 120-121 (DOJ- B7B OIG00760- 00761,763,765- 66/19-20, 22, 24-25) E-117 (DOJ- B7B OIG 00762/21) Case 1:14-cv-03776-AT Document 46-1 Filed 12/11/15 Page 6 of 7 Challenged NSA FBI2 OLC CIA NSD OIP Redactions FBI Section 215 Review II E-123-129 B1, B3, (DOJ-OIG 846- B7E 852/ 15-21) E-131-140 (DOJ-OIG 896- B7E 905/65-74) 702 Report E-142 (DOJ- B1, B3, OIG 01049 and B7E surrounding pgs/78) E-204-228 B1, B3, (DOJ-OIG B7E 00947- 00971/Xiv- --E-204-208, B1, B3 211? 214, 216- 17, 227 --E-220 B1, B3, B6, B7C, B7E E-230-231 B1, B3 B1, B3, (DOJ-OIG B7E 01 121- 01122/150-151) FBI NSL Review I B1, B3 134- 135/83-84) E-254 (DOJ- B1, B3 OIG 00116/65) E-269-273 B1, B3 (DOJ-OIG 269- 73/3 6?40) E-275 (DOJ- Bl, B3 OIG 00152/101) Case 1:14-cv-03776-AT Document 46-1 Filed 12/11/15 Page 7 of 7 Challenged NSA FBI2 OLC CIA NSD OIP Redactions FBI NSL Review II E-278-279 B1, B3 (DOJ-OIG 00354? 00336/120-121) FBI Exigent Letters Review E-147-150 B1, (DOJ-OIG B5 (at E- 00480- 149&150) 00483/61-64) E-152-155 (DOJ-OIG 00494- 00497/75-78) E-157-190 DOJ- OIG 696- 699/89-122) --E-159 B1, B7A, B7E --E-160-162 B1, B7B --E-163 B1, B7A, B7E --E-164-166 B1, B7B B1, B7A, B7E --E-169 B7B --E-170 Bl, B7A, B7E --E-171-189 --E-190-192 --E-193-194 B1, B7E --E-195 B1, B7B B1, B5 OIG 00683- 00688/263-268) 4 On E-194, the invocation of B7A applies only to the very ?rst redaction appearing on the page. Case Document 47 Filed 12/11/15 Page 1 of 2 PREET BHARARA United States Attorney for the Southern District of New York By: TARA M. La MORTE ELIZABETH M. TULIS Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, Plaintiffs, 14 Civ. 3776 (AT) Notice of Classi?ed Filing V. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. The United States Department of Justice, the defendant in the above-captioned matter, hereby provides notice that it is ?ling a classi?ed document for the Court?s in camera, ex parte review, namely, the Declaration of Dr. David J. Sherman, dated December 10, 2015. This submission is classi?ed pursuant to Executive Order 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010), and cannot be disclosed without proper authorization. Therefore, this submission has been ?led for secure storage and secure transmission to the Court (upon request) with the United States Department of Justice Litigation Security Group. The Court may contact the Litigation Security Group directly at 20 Massachusetts Avenue, NW, 5th Floor, Case Document 47 Filed 12/11/15 Page 2 of 2 Washington, DC, 202.514.9016, or contact the undersigned counsel to assist in securing delivery of these submissions for review at the Court?s convenience. Dated: New York, New York December 1 1, 2015 PREET BHARARA United States Attorney for the Southern District of New York By: Tara La Marie TARA M. La MORTE ELIZABETH M. TULIS Assistant United States Attorneys 86 Chambers Street, Third Floor New York, New York 10007 Tel: (212) 63 7-2746/2725 Fax: (212) 63 7-2702 Email: tara.lamorte2@usdoj.gov elizabeth.tulis@usdoj . gov IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, DEPARTMENT OF JUSTICE, Plaintiffs, V. Civ. A. No. Defendant. DECLARATION OF DAVID M. HARDY I, David M. Hardy, declare as follows: (1) I. am the Section Chief of the Record/Information Dissemination Section Records Management Division in Winchester, Virginia. I have held this position since August 1, 2002. Prior to my joining the Federal Bureau of Investigation from May 1, 2001 to July 31, 2002, I was the Assistant Judge Advocate General of the Navy for Civil Law. In that capacity, I had direct oversight of Freedom of Information Act policy, procedures, appeals, and litigation for the Navy. From October 1, 1980 to April 30, 2001, I served as a Navy Judge Advocate at various commands and routinely worked with FOIA matters. I am also an attorney who has been licensed to practice law in the State of Texas since 1980. (2) In my of?cial capacity as Section Chief of RIDS, I supervise approximately 219 employees who staff a total of ten (10) Federal Bureau of Investigation Headquarters units and two (2) ?eld operational service center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for access to FBI records and information pursuant to the FOIA as amended by the OPEN Government Act of 2007 and the OPEN FOIA Act of 2009; the Privacy Act of 1974; Executive Order 13526; Presidential, Attorney General, and FBI policies and procedures; judicial decisions; and Presidential and Congressional directives. My responsibilities also include the review of FBI information for classi?cation purposes as mandated by Executive Order 13526,1 and the preparation of declarations in support of Exemption 1 claims asserted under the FOIA. I have been designated by the Attorney General of the United States as an original classi?cation authority and a declassi?cation authority pursuant to Executive Order 13526, 1.3 and 3.1. The statements contained in this declaration are based upon my personal knowledge, upon information provided to me in my of?cial capacity, and upon conclusions and determinations reached and made in accordance therewith. (3) Due to the nature of my of?cial duties, I am familiar with the procedures followed by the FBI in responding to plaintiffs? request for information from its ?les pursuant to the provisions of the FOIA, 5 U.S.C. 552, and the Privacy Act of 1974, 5 U.S.C. 552a. Speci?cally, I am aware of the handling of documents referred from the Department of Justice, concerning seven Of?ce of Inspector General Reports in response to plaintiffs? FOIA request to that agency. The reports are: 0 Of?ce of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Of?ce of the Director of National Intelligence, Report on the President?s Surveillance Program, Volumes July 10, 2009 (?Jointh Report, Vols. - 75 Fed. Reg. 707 (2010). 2 The Joint IG Report on the President?s Surveillance Program is comprised of the following three volumes: I Volume I Joint Report of the Of?ce of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Of?ce of the Director of National Intelligence 0 Volume II The Department of Defense Inspector General?s Review of the President?s Surveillance 2 0 Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Section 215 Orders for Business Records, March 2007 Section 215 Review 0 Of?ce of the Inspector General, Department of Justice, A Review of the Use of Section 215 Orders for Business Records in 2006, March 2008 Section 215 Review i 0 Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008, September 2012 Section 702 Report?). 0 Of?ce of the Inspector General, Department of Justice, A Review of the Use of National Security Letters, March 2007 NSL Review 0 Of?ce of the Inspector General, Department of Justice, A Review of the Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006, March 2008 NSL Review 0 Of?ce of the Inspector General, Department of Justice, A Review of the Federal Bureau of Investigation?s Use of Exigent Letters and Other Informal Requests for Telephone Records, January 2010 Exigent Letters Review?). (4) In accordance with Vaughn v. Rosen, 484 F.2d 820 (DC. Cir. 1973), this declaration is being submitted in response to plaintiffs? motion for summary judgment and in support of the government?s motion for summary judgment in order to provide the Court and plaintiffs with an explanation of the procedures used to review and process the referred records, and of the justi?cation for the withholding of information contained in excerpts ?led by the New York Times (the ?Times?) pursuant to FOIA Exemptions and (5) The OIG Reports described in paragraph 3 of my declaration involved a Program (pgs. 1-10); The Central Intelligence Agency Inspector General?s Review of CIA Participation in the President?s Surveillance Program (pgs. 11-44); The National Security Agency, Central Security Service Inspector General?s Review of the President?s Surveillance Program (pgs. 45-212); and The Of?ce of the Director of National Intelligence Inspector General?s Review of the Participation of the ODNI in the President?s Surveillance Program (pgs. 213-233). 0 Volume A Review of the Department of Justice?s Involvement with the President?s Surveillance Program (pgs. 1-407). review of a number of intelligence and investigative activities. First, the Joint IG Report reviewed the President?s Surveillance Program, also known as the PSP or Stellarwind. In response to the terrorist attacks of 11 September 2001 on 4 October 2001, President George W. Bush issued a Top Secret authorization to the Secretary of Defense directing that the signals intelligence capabilities of the National Security Agency be used to detect and prevent further attacks in the United States. The Presidential Authorization stated that an extraordinary emergency existed permitting the use of electronic surveillance within the United States for counterterrorism purposes, Without a court order, under certain circumstances. For more than ?ve years, the Presidential Authorization was renewed at 30? to 60?day intervals to authorize the then- highly classi?ed NSA surveillance program. (6) Two of the OIG Reports discuss reviews of the use of Section 215 of the USA PATRIOT Act. 3 Section 215 is an indispensable investigative tool that continues to serve as a building block in many of the counterterrorism and counterintelligence investigations. Section 215 Business Records allow the FBI to obtain, via legal process, ?tangible items,? that would otherwise be unavailable to the FBI in counterterrorism and counterintelligence investigations. The records collected generally have either con?rmed prior investigative information or have contributed to the development of additional investigative information, and have been valuable in providing investigative leads. (7) One of the OIG Reports addresses electronic monitoring pursuant to 3 The term PATRIOT Act? is an acronym for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008. Section 702 allows the FBI to conduct electronic surveillance on Persons, reasonably believed to be located overseas, through various modes of electronic communications. The intelligence gathered through this means has either con?rmed prior investigative information or has contributed to the development of additional investigative information, and has been invaluable in providing investigative leads. The collection of intelligence information through this form of electronic surveillance is an important intelligence source and method and investigative technique and procedure employed by the FBI to combat international terrorism. The ability to use this speci?c intelligence method and investigative technique allows the FBI to carry out its responsibilities as a law enforcement agency and ensure the safety and security of the American people. (8) Two of the OIG Reports concern the use of National Security Letters NSLs are indispensable investigative tools that serve as building blocks in many FBI counterterrorism and counterintelligence investigations. NSLs have various uses, including obtaining evidence to support Foreign Intelligence Surveillance Act applications for electronic surveillance, pen register/trap and trace devices, or physical searches; developing communication or ?nancial links between subjects of FBI investigations and between those subjects and others; providing evidence to initiate new investigations, expand national security investigations, or enable agents to close investigations; providing investigation leads; and corroborating information obtained by use of other investigative techniques. (9) NSLS can be used early in a national security investigation to develop leads and to determine a subject?s associates and ?nancial dealings as well as to remove individuals from suspicion. The USA PATRIOT Act changed the standard for obtaining an NSL and altered the FBI approval levels. Subsequently, NSLs have become increasingly important investigative tools in national security cases. (10) Finally, one of the OIG Reports analyzed the use of ?Exigent Letters.? From March 2003 to December 2005, the FBI utilized Exigent Letters, a form of informal legal process, to obtain non-content telephonic records from three on-site communications service providers without ?rst serving legal process. Rather, Exigent Letters were provided to the three on-site communications services providers upon approval by FBI employees. The Exigent Letter provided an explanation to the providers as to why there was insuf?cient time to obtain proper legal process, e. an exigent circumstance, and that follow-up legal process would be served at a later date. The Exigent Letters had attachments listing various categories of information requested, such as subscriber information and community of interest reports. JUSTIFICATION FOR NONDISCLOSURE UNDER THE FOIA4 (1 1) All documents referred to the FBI by the Department of Justice and responsive to plaintiffs? request were processed to achieve maximum disclosure consistent with the access provisions of the FOIA. Every effort was made to provide plaintiffs with all material in the public domain and with all reasonably segregable, non-exempt information in the responsive records. No reasonably segregable, nonexempt portions have been withheld from plaintiffs. Further description of the information Withheld, beyond What is provided in this declaration, could identify the actual exempt information the FBI has protected. As discussed below, the exemptions asserted by the FBI as grounds for non- 4 This declaration addresses only those pages of the government?s production included by the Times in the excerpts ?led with their motion for summary judgment. disclosure of portions of documents are FOIA Exemptions and Explanation of the Coded Format Used to Describe and Justify Withholdings (12) The Bates-numbered documents contain, on their faces, coded categories of exemptions detailing the nature of the information withheld pursuant to the provisions of the FOIA. The coded categories are provided to aid the Court?s and plaintiffs? review of the explanations of the FOIA exemptions it has asserted to withhold the material. The coded, Bates-numbered pages, together with this declaration, demonstrate that all material withheld by the FBI is exempt from disclosure pursuant to the cited FOIA exemptions, or is so intertwined with protected material that segregation is not possible without revealing the underlying protected material. (13) Each instance of information withheld on the Bates-numbered documents is accompanied by a coded designation corresponding with the categories listed below. For example, if appears on a document, the designation refers to FOIA Exemption protecting against unwarranted invasions of personal privacy. The numerical designation of following the narrows the main category into a more speci?c subcategory, such as ?Names and/or Identifying Information of Third Parties of Investigative Interest.? (14) Listed below are the categories used to explain the FOIA exemptions asserted to withhold the protected material: SUMMARY OF JUSTIFICATION CATEGORIES INFORMATION WITHHELD CODED CATEGORIES Category CLASSIFIED INFORMATION Intelligence Activities, Sources, and Methods (E.O. 13526 [cited in conjunction with and at times Category INFORMATION PROTECTED BY STATUTE National Security Act of 1947 [50 U.S.C. Section [cited in conjunction with and at times Category PRIVILEGED INFORMATION Attorney-Client Privilege Deliberative Process Privilege Category PENDING LAW ENFORCEMENT PROCEEDINGS Pending Law Enforcement Proceedings Cate cries and CLEARLY UNWARRANTED INVASION OF PERSONAL (maic) PRIVACY AND UNWARRAN TED INVASION OF PERSONAL PRIVACY Names and/or Identifying Information of Third Parties Of and Investigative Interest Category CONFIDENTIAL SOURCE INFORMATION Names and/or Information Provided by Individuals Under an Implied Assurance of Con?dentiality Category INVESTIGATIVE TECHNIQUES PROCEDURES Sensitive Investigative Techniques and Procedures [cited at times in conjunction with and EXEMPTION 1) CLASSIFIED INFORMATION (15) The analysis of the withholding of classi?ed information contained in these documents is based on the standards articulated in the FOIA statute, 5 U.S.C. 552 Exemption protects from disclosure those records that are: (A) speci?cally 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 classi?ed pursuant to such Executive Order. (16) Before I consider an Exemption claim for withholding agency records, I determine whether the information in those records is information that satis?es the requirements of Executive Order 13526, which governs the classi?cation and protection of information that affects the national security,5 and whether the information complies with the various substantive and procedural criteria of the Executive Order. E.O. 13526, signed by President Barack Obama on December 29, 2009, is the Executive Order that currently applies to the protection of national security information. I am bound by the requirements of ED. 13526 when making classi?cation determinations. (17) For information to be properly classi?ed, and thus properly Withheld from disclosure pursuant to Exemption the information must meet the requirements set forth in EC. 13526 1.1 (1) an original classi?cation authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classi?cation authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to thelnational security, which includes defense against transnational terrorism, and the original classi?cation authority is able to identify or describe the damage. (18) As I will explain in further detail below, in my role as an original classi?cation authority, I have determined that the information withheld pursuant to 5 Section 6.1 (cc) of E0. 13526, de?nes ?National Security? as ?the national defense or foreign relations of the United States.? Exemption is under the control of the United States Government, and is properly marked at the ?Top Secret? or ?Secret? level since the unauthorized disclosure of this information reasonably could be expected to cause exceptionally grave or serious damage to national security. See E.O. 13526 1.2 (l 9) In addition to this substantive requirement, certain procedural and administrative requirements of E0. 13526 must be followed before information can be considered to be properly classi?ed, such as proper identi?cation and marking of documents. I made certain that all procedural requirements of 13526 were followed in order to ensure that the information was properly classi?ed. I made certain: (I) each document was marked as required and stamped with the proper classi?cation designation; (2) each document was marked to indicate clearly which portions are classi?ed and which portions are exempt from declassi?cation as set forth in ED. 13526 1.5 (3) the prohibitions and limitations on classi?cation speci?ed in ED. 13526 1.7, were adhered to; (4) the declassi?cation policies set forth in E0. 13526 3.1 and 3.3 were followed; and (5) any reasonably segregable portion of these classi?ed documents that did not meet the standards for classi?cation under E.O. 13526 was declassi?ed and marked for release, unless withholding was otherwise warranted under applicable law. (20) With the above requirements in mind, I personally and independently examined the information withheld from plaintiffs pursuant to FOIA Exemption As a result of this, I determined the classi?ed information continues to warrant classi?cation at the ?Top Secret?, or ?Secret? level, respectively, and is exempt from disclosure pursuant to E0. 13526, 1.4, category Speci?cally, the information pertains to ?intelligence activities (including covert action), intelligence sources or methods, or The 10 analysis and details underlying my ?ndings are discussed further below. EXEMPTION INFORMATION PROTECTED BY STATUTE (21) 5 U.S.C. 552(b)(3) exempts from disclosure information which is: speci?cally exempted from disclosure by provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, speci?cally cites to this paragraph. National Security Act of 1947 [50 U.S.C. 8 (22) Exemption 3 was asserted to withhold information pursuant to Section 102A(i)( 1) of the National Security Act of 1947 as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 50 U.S.C. ?3024(i)(1), which provides that the Director of National Intelligence ?shall protect from unauthorized disclosure intelligence sources and methods.?6 As relevant to 5 U.S.C. the National Security Act of 1947 was enacted before the date of enactment of the OPEN FOIA Act of 2009.7 On its face, this federal statute leaves no discretion to agencies regarding withholding from the public information about intelligence sources and methods. Thus, the protection afforded to intelligence sources and methods by 50 U.S.C. 3024(i)(1) is absolute. See CIA v. Sims, 471 U.S. 159 (1985). (23) In order to ful?ll its obligation of protecting intelligence sources and methods, the DN1 is authorized to establish and implement guidelines for the Intelligence Community for the classi?cation of information under applicable laws, Executive Orders, 6 Section 1024(i)(1) of the National Security Act was previously codi?ed at 50 U.S.C. 403(i)(1). As a result of the reorganization of Title 50 of the U.S. Code, Section 102A(i)(1) is now codi?ed at 50 U.S.C. 3024(i)(1). 7 The OPEN FOIA Act of 2009 was enacted on October 28, 2009, Pub.L. 111-83, 123 Stat. 2142, 2184; 5 U.S.C. ll or other Presidential Directives, and for access to and dissemination of intelligence. 50 U.S.C. 3024(i)(i)(1member agencies comprising the Intelligence Community, and as such must protect intelligence sources and methods. (24) As described above, Congress enacted the NSA, as amended by the IRTPA, to protect the Intelligence Community?s sources and methods of gathering intelligence. While no showing of harm is necessary to properly invoke the statute, intelligence sources and methods must be protected because disclosure of such information presents the potential for individuals to develop and implement countermeasures, which would result in the loss of signi?cant intelligence information, relied upon by national policymakers and the Intelligence Community. Given that Congress speci?cally prohibited the disclosure of information pertaining to intelligence sources and methods used by the Intelligence Community as a whole, I have determined that the intelligence sources and methods would be revealed if any of the information withheld pursuant to Exemption is disclosed to plaintiffs, and thus, the FBI is prohibited from disclosing the information under 50 U.S.C. 3024(i)(1). Thus, this information was properly withheld pursuant to Exemption as prescribed by 50 U.S.C. EXEMPTION (MG) and EXEMPTION INTELLIGENCE ACTIVITIES, SOURCES AND METHODS (E.O. 13526 8 (25) The FBI has asserted Exemption and often with (at times in conjunction with to withhold information on the following topics from the listed pages in the reports, with citations to the excerpts ?led by the Times in support of its motion for summary judgment (Dkt. No. 32): 8 Exemption has been asserted on Bates Numbered pages: 13-14-15, 19, 28, 32-34, 36, 45-47, 49-50, 77, 86- 94, 204-228, 230-231, 233-235, 239-241, 243-252, 254, 265, 269-273, 275, 278-279, 292, 355, 367-369, and 371. 12 Report NYT Excerpt Pages Topic Joint IG Report E-14 to E-15, and E-265 Historical Summary of participation Vol. I in the PSP E-19 FBI information relating to PSP and FISA applications E-28 and E-292 FBI participation in the PSP in March 2004 E-32-34, E36, and 13-77 Transition of PSP activities to operation under FISA authority E-233-235 Information Related to Impact of PSP on - Counterterrorism Operations. Joint IG Report E-23 9-241 Chart of Individual Investigations and the Vol. II Contribution of the PSP to these Investigations Joint IG Report E-86-94, E-97, E-102-110, E- Descriptions of Collection Under Vol 111 112-113, E-243-252, E-355, Stellarwind and Discovery Implications, E-367--370 and E-371 including descriptions of individual investigations in connection with Stellarwind Information FBI Section 215 E-115-117, E-118, and E-l20- Number of US. Persons and Review I 121 Persons referenced in the Pure Section 215 applications that were submitted and approved by the FISA Court; Types of records requested in the withdrawn applications for Pure Section 215 Orders; and Identi?cation of Field Of?ces that submitted Pure Section 215 applications that were approved by the FISA Court FBI Section 215 E-123-129, and E-131-140 Number of US Persons and Review 11 Persons referenced in Pure Section 215 applications processed from 2002-2006; Types of records requested in Pure Section 215 applications; Numbers of FBI Field Of?ces that submitted Section 215 requests; and Use of Section 215 in a particular investigation FBI Section 702 E-142, E- Use of PRISM and Targeting Report 204-228, and E-230-231 Procedures FBI NSL E-144-145, E-254, E-269-273 The use of NSLs in investigations; Review I and E-275 breakdowns of the numbers of NSLs issued by type; and EOPS operational 13 information FBI NSL Use and Justi?cation of Non- Review II Disclosure Provision in NSLs FBI Exigent E-64, E-147-150, E-152-155, use of Exigent Letters in Letters Review E-159-169, E-170-189, E-193- intelligence and criminal investigations. The value of the information obtained from Exigent Letters, statistics concerning use of Exigent Letters, and types of information obtained from Exigent Letters. 195, and E-197-202 (26) ED. 13526, exempts intelligence activities (including covert action), intelligence sources or methods, or from disclosure. An intelligence activity or method includes any intelligence action or technique utilized by the FBI against a targeted individual or organization that has been determined to be of national security interest. An intelligence method is used to indicate any procedure (human or non-human) utilized to obtain information concerning such individual or organization. An intelligence activity or method has two characteristics. First, the intelligence activity or method?and information generated by it?is needed by US. agencies to carry out their missions. Second, con?dentiality must be maintained with respect to the activity or method if the viability, productivity and usefulness of its information are to be preserved. Classi?ed information is withheld on certain pages to protect intelligence methods utilized by the FBI for gathering intelligence data. (27) As described in detail at paragraphs 35-86 of my declaration, the classi?cation redactions were made to protect from disclosure information that would reveal actual intelligence activities, sources, and methods as used by the FBI against targets of foreign counterintelligence investigations or operations; identify a target of a foreign counterintelligence investigation; or disclose the intelligence gathering capabilities of the 14 FBI to gather speci?c information on targets of national security investigations. The intelligence activities or methods detailed in the withheld information were utilized in the national security investigations and are an effective means for the FBI to gather, store, or disseminate intelligence information. Even though certain of the techniques are no longer actively utilized, disclosure of details concerning the operation of those techniques could reasonably be expected to result in harm to national security, because disclosure provides adversaries with valuable insight into the technical capability to acquire'and analyze information, and informs them of what kinds of information the FBI may have knowledge of. Armed with this information, adversaries could extrapolate and apply these insights to devise more effective counter-surveillance techniques to shield their current activities from detection. (28) As further discussed below, release of the exempted classi?ed material would reveal actual intelligence activities or methods as implemented by the FBI and disclose the intelligence-gathering capabilities of those activities or methods employed. The release of this information could permit hostile governments to appraise the scope, focus, location, and capabilities of the intelligence gathering methods and activities, and allow hostile agents to devise countermeasures to circunivent these intelligence activities or methods and render them useless in providing intelligence information. The countermeasures could include the alteration of behavior to evade detection as well as utilize these same methods and activities to engage in disinformation. The disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national security, and at times, serious damage to the national security, as it would: reveal the actual intelligence activity or method utilized by the FBI against a speci?c 15 target; disclose the intelligence-gathering capabilities of the method; and (0) provide an assessment of the intelligence source penetration of a speci?c target during a speci?c period of time. This would severely disrupt the intelligence gathering capabilities. This information is properly classi?ed at the ?Top Secret,? and at times, the ?Secret? level, withheld pursuant to E0. 13526, and is exempt from disclosure pursuant to Exemption 1. (29) The above-described information withheld in this case pursuant to exemption exemption and at times exemption was not examined in isolation, but in light of the body of information available to me concerning the national defense and foreign relations of the United States. Accordingly, each piece of information was evaluated with careful consideration given to the impact that disclosure of this information will have on other sensitive information contained elsewhere in the United States Intelligence Community?s ?les. Equal consideration was given to the impact that other information -- either in the public domain or likely known or suspected by present or potential adversaries of the United States -- would have upon the information I examined. (3 O) In those instances Where, in my judgment, the disclosure of this information could reasonably be expected to cause exceptionally grave or serious damage to the national security, and its withholding outweighed the bene?t of disclosure, I exercised my prerogative as an original classi?cation authority and designated that information as classi?ed in the interest of national security, and invoked Exemption 1 of the FOIA to prevent disclosure. Likewise, the justi?cations for the withheld classi?ed information were prepared with the intent that they be read with consideration given to the context in which the classi?ed information is found. This context includes nOt only the 16 surrounding unclassi?ed information, but also other information already in the public domain, as well as information likely known or suspected by other hostile intelligence entities. It is my judgment that any greater speci?city in the descriptions and justi?cations set forth with respect to information relating to foreign activities and intelligence sources and methods of the United States could reasonably be expected to jeopardize the national security of the United States.9 (31) I understand that the Times has argued in its motion for summary judgment that the FBI has made inappropriate redactions that ?seek to obscure information that addresses activities that are either illegal or capable only of causing agency embarrassment,? or that relate to ?facts that have been of?cially acknowledged and publicly disclosed by the government,? or ?information about publicly ?led, but unnamed, criminal court cases,? or that relates solely to ?legal analysis? and ?does not disclose covert facts,? or that relates to ?the legal dispute between attorneys and White House of?cials over the legal justi?cation for the Stellarwind program.? NYT Br. at 14. (32) No redactions have been made for the purpose of obscuring illegal activities or preventing embarrassment to the government. The Times speci?cally cites on pages 14-17 of their brief to a number of pages from the various OIG Reports as pages withheld for those alleged reasons. Notably, the information at issue, which was declassi?ed and released by the government, includes a number of instances in which the FBI was found to have engaged in improper activities. The FBI thoroughly reviewed the pages cited by the Times and determined that the information contained therein was 9 Exemption has been asserted on Bates Numbered pages: E-14-15, 19, 28, 32?34, 36, 45-47, 49-50, 64, 77, 170-189, 193-195, 197?202, 204-228, 230-231, 233-235, 239-241, 243-252, 254, 265, 275, 292, 269-273, 278-279, 355, 367-370, and 371. 17 properly redacted because it implicated either classi?ed information, and was thus exempt under constituted information protected by statute, and was thus exempt under disclosed non-public investigative techniques and procedures and was thus exempt under and/or revealed information about ongoing investigations that could reasonably be expected to interfere with enforcement proceedings, and was thus exempt from disclosure under (33) None of the redacted information has been of?cially acknowledged. I am familiar with the information that the government has of?cially acknowledged that is cited in the Times? brief, and the information withheld from the reports is materially different from the information that has been of?cially acknowledged. The withheld information is materially different from the information referenced by the Times because it identi?es speci?c targets and covert methods of surveillance as applied in different FBI investigations and operational details that were not revealed in any prior of?cial disclosure. SPECIFIC CATEGORIES OF INFORMATION WITHHELD (34) The information withheld under exemptions and at times can be grouped into (13) categories as listed in the table appearing in paragraph 25 of my declaration and further detailed immediately below. A. Joint IG Report Vol. I Historical Participation by the FBI in the PSP (35) The FBI withheld from disclosure information regarding the extent the FBI participated in the PSP and, relatedly, the extent information provided by the FBI was utilized in the PSP. Disclosure of details describing the extent and nature of the participation in the PSP would reveal the capability to collect information, as well as the extent and nature of information sharing between Intelligence Community agencies. In 18 addition, revealing the type of information provided by the FBI to Intelligence Community agencies would provide insight into the speci?c types of information the FBI is able to collect, they type of information shared between intelligence agencies, as well as information about individuals who were recruited to be FBI Con?dential Human Sources. Being armed with information concerning the types of information the FBI is able to obtain and how the Intelligence Community interacts in conducting national security . investigations enables adversaries to better structure current activities to evade detection. (3 6) The redacted material also contains information regarding the identities of individuals of particular investigative interest to the FBI. Exposing this information would reveal the capability of the FBI and other Intelligence Community members to collect on these individuals, along with certain information that was obtained as a result of FBI investigations and cooperation with foreign law enforcement entities and other US. Intelligence Community agencies. Targets and their associates could reasonably be expected to use this information to employ countermeasures to inhibit access to their communications or to employ countermeasures to avoid other FBI techniques and methods, which, in turn, could result in a loss of valuable intelligence. Information in this category was withheld from E-1.4, E-15 and E-265. (3 7) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See in?a 111} 107-110. B. Joint IG Report Vol. I: Use of FBI Information Relating to the PSP and FISA Applications (38) Relatedly, the FBI withheld from disclosure information provided by the 19 FBI that was included in the PSP. The withheld material consists of information pertaining to ongoing FBI investigations and the implementation of various investigative techniques, including the use of FBI Con?dential Human Sources, the use of court authorized electronic surveillance, and the analytical techniques used by the FBI during investigations. Information in this category was withheld from E-19. (3 9) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See infra 1 07-1 1 0. C. Joint IG Report Vol. I FBI Participation in the PSP in March 2004 (40) The FBI withheld from disclosure information regarding the participation in the PSP in March 2004 because it would reveal details regarding the investigations, methods, and techniques as implemented by the FBI at a speci?c point in time. In addition to the reasonably expected harms discussed in paragraph 35 of my declaration, disclosure of this information would provide a speci?c ?snapshot? of collection capabilities at a particular point in time. This ?snapshot? would provide adversaries with insight into whether or not their communications were collected during this speci?c time period and whether or not the FBI would have been alerted to their operational plans and activities. Such disclosure may result in FBI subjects altering their operational plans or may encourage them to pursue more aggressive counter-surveillance measures, thereby causing harm to national security. (41) The FBI also withheld from disclosure certain technical capabilities used by the FBI that are still utilized by the FBI and not known to the public. These technical 20 capabilities outline investigative techniques and methods that are utilized in counterintelligence, counterterrorism and criminal investigations, which if disclosed would allow subjects and their associates to circumvent FBI collection. (42) Information in this category was withheld from E-28 and E-292. (43) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See in?a 1m 107-110. D. Joint IG Report Vol. I: Transition of PSP Authorities to Court Authorized FISC Authority (44) Disclosure of the discussion of the transition from electronic communications under the PSP to FISC authorized electronic surveillance would reveal valuable information concerning what intelligence was used in obtaining authorization under the FISC. In addition, disclosure of the details of this transition would reveal gaps in intelligence collection would alert adversaries to when their communications were not under surveillance, allowing them insight into what operational plans may still be viable. Information in this category was withheld from 32-34, E-36, and E-77. (45) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(l). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See infra 107?110. E. Joint IG Report Vol. I Information Related PSP Impact on Counterterrorism Investigations (46) The FBI withheld from disclosure of information related to the 21 impact on past and ongoing counterterrorism investigations. Disclosure of how PSP information was used in past and ongoing FBI counterterrorism investigations would provide adversaries with valuable information conCerning the capability to acquire communications, the technical means by which communications are effected, and the analytical tools utilized by the FBI to ?connect the dots? between foreign and domestic subjects. (47) Disclosure of information in this category would also reveal speci?c ?le names, the identities of operational units, and speci?c targets of PSP activities that are not known to the public. The information regarding these ?le names and operational units would highlight the types of leads, activities, facts, and occurrences that are of speci?c interest to the FBI. This information would inform individuals of the kinds of information the FBI was interested in capturing and disclose facilities that are of investigative interest to the FBI. As to PSP targets, the reasonably expected national security harms attending disclosure of speci?c targets of PSP collection are described in paragraph 36 of my declaration. (48) Disclosure of information in this category would also reveal the relationship with foreign law enforcement services and how information is shared and investigations are developed domestically and overseas. As mentioned in paragraph 35, foreign government information and relationships play a vital part in FBI terrorism investigations, often with each side providing time sensitive information that results in disruptions of terrorist plots or arrests of alleged terrorists and their facilitators. Disclosure of these relationships would reveal the cooperation that exists between the FBI and other foreign intelligence and law enforcement agencies, and sensitive intelligence and 22 investigative information that is shared between them. This type of disclosure would provide adversaries with valuable information about the type of information that is shared, which would allow them to employ counter?surveillance techniques domestically and abroad, as well as alert their associates overseas of the close working relationship with a speci?c foreign law enforcement agency. Disclosure could also reasonably be expected to chill intelligence-sharing between the FBI and certain foreign intelligence agencies, leading to gaps in intelligence and threat information. Information in this category was withheld from E-233-235. (49) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See infra 1111 107-1 10. F. Joint IG Report Vol. II Chart of Individual Investigations and the Contribution of the PSP to these Investigations (50) The FBI withheld from disclosure a chart of several FBI investigations and the contribution of the PSP to these investigations. The contribution of the PSP to individual investigations has never been made public and. remains properly classi?ed. While individual cases mentioned in the chart may have been publicly prosecuted and subsequently sentenced, at no time during any of these prosecutions was information pertaining to the role in the investigation disclosed publicly. Any information regarding the PSP was handled in accordance with the Classi?ed Information Procedures Act Disclosure of the contribution of the PSP to individual investigations would alert targets? associates of the knowledge of their communications. Even if the I targets themselves may no longer be under investigation, their associates and other 23 connections may still be of interest to the FBI and other Intelligence Community agencies. As described in paragraph 36 of my declaration, acknowledging an individual?s status as a subject of Stellarwind efforts would alert that person and his/her associates that the government has the ability to, and in fact does, intercept or have access to speci?c kinds of communications. Disclosure of this can reasonably be expected to cause a change in the behavior of those using these types of accounts and thereby undermine current collection efforts. Such changes in behavior may result in a denial of access to current targets? communications. Information in this category was withheld from pages E- 239-E-241 (51) This information is also exempt from release based on FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See infra 107-1 10. F. Joint IG Review Vol. Descriptions of Collection Under Stellarwind and Discovery Implications, including descriptions of individual investigations in connection with Stellarwind Information (52) The FBI withheld from release descriptions of individuals subject to collection under Stellarwind. Revealing information regarding the identity of a subject who was subject to collection under Stellarwind would disclose current and properly classi?ed FBI investigations. As described in paragraph 50 of my declaration, the fact that speci?c FBI targets were prosecuted has been publicly disclosed, however, the fact that speci?c FBI targets were prosecuted and that Stellarwind information may have had an impact or was somehow connected to their investigations has never been publicly disclosed. Stellarwind information that may have had an impact on the prosecution of an 24 individual would have been properly handled in accordance with the Classi?ed Information Procedures Act and been presented and ruled on by the court in an in camera, ex- parte declaration. The declarations ?led by the FBI for the purpose of CIPA are prOperly classi?ed and have never been disclosed publicly. (53) Furthermore, for the reasons discussed in paragraphs 36 and 50 of my declaration, con?rmation that Stellarwind may or may not have been connected with an individual investigation could reasonably be expected to result in harm to national security. Information in this category was withheld from disclosure from pages E-86 E-94, E-97, E-102 E-l 10, E-113, E-243- 252, E-355, E-367- E-37O and E- 371. (54) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See infra 107-110. H. FBI Section 215 Review I: Number of U.S. Persons and Persons referenced in Pure Section 215 applications that were submitted and approved by the FISA Court; Types of records requested in the withdrawn applications for Pure Section 215 Orders; and Identi?cation of Field Of?ces that submitted Pure Section 215 requests that were approved by the FISA Court (55) Disclosure of information referencing the number of United States Persons and Non-United States Persons referenced in the Section 215. Applications that were submitted and approved by the FISA Court would reveal the size, scope, and frequency with which the FBI relies on business records in conducting its investigations, and further where the FBI focuses its investigative efforts, including the extent such records are relied upon to obtain information on certain categories of targets. Armed with this information, individuals seeking to cause harm to the United States and 25 circumvent detection would be able to piece the information into a mosaic revealing the speci?c operation of an intelligence technique. (56) Disclosure of information referencing the types of records requested in Section 215 Applications that were ultimately not submitted to the FISA Court is reasonably likely to result in harm to national security because it would allow individuals to gain valuable insight into what types of records may be ?safe? from collection in connection with the national securityinvestigations. This knowledge would enable them to structure their activities in a manner so as to avoid detection. (5 7) Disclosure of information identifying the FBI Field Of?ces that submitted requests approved by the FISC would reveal, in the aggregate, speci?c areas of investigative interest to the FBI, and where FBI focuses its investigative efforts, and would provide FBI subjects and associates with an overview of FBI operations in the United States. It is publicly known that the FBI is authorized to conduct domestic investigations, and the types of Violations the FBI investigates are publicly known. However, it is not publicly known how the FBI allocates resources to investigate these violations. Disclosing speci?c FBI Field Of?ces, how many applications each ?eld of?ces submits, and how the FBI allocates its resources would provide FBI subjects and associates with valuable insight into where their communications would most likely be collected or intercepted. If a subject of an FBI investigation is aware that more or fewer requests for speci?c legal authorities are requested depending on the geographical location, the subject would be more likely to alter their behavior or tradecraft in order to avoid surveillance. Information in this category was Withheld from E-115-117, E-118, E-120-121. (58) This information is also exempt from release pursuant to FOIA Exemption 26 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 111] 21-24. This information is also protected from release pursuant to FOIA Exemption See infra 111] 107-110. I. FBI Section 215 Review Number of U.S. Persons and Persons identi?ed as subjects in Pure Section 215 applications processed from 2002-2006; Types of records requested in Pure Section 215 applications; Numbers of FBI Field Offices that submitted Section 215 requests; and Use of Section 215 in a particular investigation (59) DisclosUre of information regarding the number of U.S. Persons and Persons identi?ed as subjects in Pure Section 215 applications in a number of years and/or the numbers of subjects of Combination Orders could reasonably be expected to result in the same harms discussed in paragraph 55 of my declaration. (60) Disclosure of the types of records sought in Pure Section 215 applications in certain years would reveal what information was obtained by the FBI and what information remains ?safe,? thereby providing the individuals with valuable insight into what the FBI knows or understands about potential operational plans. Furthermore, this information would allow subjects to discern what channels of information may be of interest to the FBI, thereby allowing the subjects to either mislead the FBI or evade particular channels of communication that are not subject to FBI surveillance, in either case risking grave damage to national security. (61) Disclosure of the number of FBI Field Of?ces that submitted Section 215 requests would reveal how the FBI focuses investigative efforts, speci?cally, the extent to which the FBI utilized Section 215 and thus the value of this tool to its investigative efforts. Adversaries, armed with this information, could adjust their behavior accordingly to reduce 27 the likelihood of being effectively surveilled. (62) The information withheld also includes information describing the use of Section 215 in a particular investigation, including background information about the investigation, the contents of a Section 215 application made in connection with the investigation, communications concerning the FISA Court?s denial of the application, and concerns expressed by 01G. Disclosure of facts pertaining to how the FBI sought to use Section 215 in a particular FBI investigation, including the background of the investigation and the content of the Section 215 application associated with it, would provide adversaries with valuable insight into the FBI investigative process. To avoid compromising the effectiveness of Section 215 as a tool in FBI investigations, the FBI has not publicly disclosed speci?c details concerning how it seeks to use and in fact uses Section 215 in practice to develop an investigation. Moreover, applications to the FISC contain information pertaining to several sensitive FBI investigative techniques that have not been disclosed to the public. How the FBI conducts investigations and what information the FBI uses in Section 215 applications has never been publicly disclosed, as disclosure would undermine the ability to effectively conduct investigations using that tool. Disclosure of the dialogue between FBI, DOJ, and the FISC concerning the particular Section 215 application at issue would reveal sensitive information concerning how and why the FBI took speci?c investigative steps and came to the conclusion that a Section 215 business order was necessary in order to further the investigation. Disclosure of this information would provide FBI subjects and associates valuable information necessary to thwart surveillance and detection. (63) Information in this category was withheld at E-123 E-129 and E-131 28 E- 140. (64) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See infra 107-] 10. I J. FBI Section 702 Report: PRISM and FBI Targeting Procedures (65) PRISM serves as a repository for counterterrorism and investigative data. It is a ?one-stop? shop that allows the FBI to query information and develop investigative leads from a variety of source data collected by multiple intelligence agencies using state of the art analytical tools. FBI personnel, as well as task force members from state, local, and other federal agencies, have access to PRISM (66) Although the use of PRISM as a general matter is no longer classi?ed, the withheld information describes how the FBI decides what information is entered into PRISM and the nature of the information that is ultimately entered into PRISM. These remain properly classified facts. Disclosure of additional facts concerning the operation of PRISM and the information entered into PRISM Would allow FBI subjects and adversaries to gain valuable insight into the analytical capabilities and how the FBI ?connects the dots.? FBI subjects are known to analyze public disclosures of FBI capabilities. Release of additional details concerning PRISM would severely undermine the effectiveness of PRISM as a tool to identify and eliminate potential FBI subjects and associates. Releasing the withheld operational information about PRISM may cause adversaries to alter their methods of communication, resulting in a critical loss of actionable intelligence by the FBI, thereby causing harm to national security of the United 29 States. (67) The FBI also protected its Targeting Procedures. The FBI employs Targeting Procedures pursuant to Section 702 to target non-US. persons reasonably believed to be located outside the United States to acquire foreign intelligence information. The ability to conduct electronic surveillance on foreign targets through various modes of electronic communications has proven to be an indispensable investigative tool in counterterrorism and counterintelligence investigations. Electronic surveillance that was initiated under the Targeting Procedures has provided (and continues to provide) the agency with valuable, actionable information used to further investigations. Disclosure of these procedures would allow FBI subjects to gain valuable insight into how the FBI identi?es subjects and their associates, thereby allowing them to deploy countermeasures that would make it more dif?cult to determine if they are appropriate targets. Once such counter-surveillance techniques and methods were employed, these subjects and their associates could operate undetected in the United States or abroad. (68) Information in this category was withheld from E-45- E47, E-49, E-142, E-204 E-225 and E-230 E231. (69) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. This information is also protected from release pursuant to FOIA Exemption See in?a 1111 107-1 10. K. FBI NSL Review I: Use of NSLs in Investigations; the Breakdown of NSL Numbers by Type; and EOPS Operational Information (70) The FBI uses many tools in national security investigations. One of the basic, yet essential, tools is the NSL. The use of NSLs is not classi?ed. However, 30 additional information describing the instances in which NSLS were used in certain investigations would inform individuals of the types of information sought in such investigations and how the NSLS were used in furthering the investigations. It would also expose the kind of information that the FBI considers valuable in a national security investigation and would therefore enable adversaries to structure their activities to avoid detection. Moreover, the varieties of information used to legally justify requesting information by Virtue of NSLs in the context of speci?c investigations are also properly classi?ed facts, as such justi?cation may contain intelligence from other US. government intelligence agencies, and foreign and domestic law enforcement services. FBI subjects know the FBI can collect information regarding their methods of communication. Any additional disclosures regarding how FBI techniques operate in practice would permit FBI 7 subjects and their adversaries to more effectively craft their counter-surveillance-efforts to frustrate the government?s collection efforts. (71) Disclosing breakdowns of the different types of NSLs issued across certain years reveals how extensively the FBI relies upon certain types of information to further an investigation. This can reasonably be expected to provide an adversary with insight as to what type of information is valuable to the FBI, and to structure their activities accordingly. (72) Moreover, disclosing the types of facilities the FBI analyzed in national security investigations would enable adversaries to extrapolate or reverse engineer the process for identifying facilities, and use this information to thwart detection. Adversaries could also identify what facilities the FBI did not collect upon, revealing potential gaps in intelligence collection. This information would allow FBI subjects to 31 modify or evade particular channels of communications. (73) Similarly, disclosing information regarding the use of NSLs in a speci?c number of counterterrorism investigations in certain years would reveal information concerning the-size, scope, and frequency of NSL use in those particular types of cases. Armed with this information, terrorists could ascertain the probability of whether or not their non?content communications were collected during these years. These individuals could alert their associates and other adversaries to the fact the FBI surveilled them during a speci?c time period, allowng these individuals to modify plans or destroy evidence. (74) The FBI also withheld from disclosure operational information concerning the agency?s Electronic Operations and Sharing Unit The general mission of EOPS has been publicly disclosed, but speci?c operational missions conducted by EOPS remain classi?ed and have not been publicly disclosed. The information withheld in E-275 does not merely disclose the general mission of EOPS, but divulges speci?c operational details. These details, if disclosed, would provide FBI subjects, associates and adversaries of the United States unique insight into collection methods and platforms targeted by the FBI and disseminated to other US. government agencies. (75) Information in this category was withheld in pages E-l44-145, E-254, E- 269-273 and (76) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. L. FBI NSL Review II: Use and Justi?cation of Non-Disclosure Provision in NSLs (77) The information redacted consists of 13 ?adverse consequences? that FBI agents were directed by counsel to consider in deciding whether a non-disclosure provision 32 should be included in an NSL. A non?disclosure provision prohibits the recipient of the NSL from informing the target of the recipient?s obligation to produce certain information pertaining to the target. (78) Public disclosure of the adverse consequences that agents should consider, which are factual in nature, could reasonably be expected to result in national security harm. Armed with the knowledge of what factors support inclusion of a non-disclosure provision in an NSL, adversaries seeking to evade FBI scrutiny could reasonably be expected to seek to identify ?loop holes? and modify their behaviors to minimize the likelihood that any NSL directed at their accounts will include a non-disclosure provision. In such case, an adversary could then learn of the issuance of an NSL directed to his/her accounts, thus identifying him/her as a person of interest to the FBI. (79) Information in this category was withheld in pages E-278- E-279. (80) This information is also exempt from release pursuant to FOIA Exemption 3, 5 U.S.C. 552(b)(3), in conjunction with 50 U.S.C. 3024(i)(i)(1). See supra 21-24. M. FBI Exigent Letters Review (81) The FBI withheld from disclosure information that would reveal ongoing investigations and sensitive investigative methods and techniques, including operational details concerning implementation of particular investigative methods; the subject and focus of a particular ongoing counterterrorism investigation, including background information about the investigation, methods used in the investigation, and coordination with a foreign entity; the identity of a particular Field Of?ce; and the identities of certain individuals of interest. (82) Disclosure of the details regarding the identities of particular subjects 33 would alert them to their status as such, and could reasonably be expected to cause them and their associates to modify their behaviors to conceal their activities or destroy evidence, and to circumvent collection that is currently occurring under legally authorized programs. (83) Disclosure of information regarding the implementation of particular methods would further enable current and former targets, and their associates, to discern which of their communications and activities may have been collected and observed and subsequently used in investigations. The information at issue would provide the subjects and their associates with detailed information concerning not just the role of exigent letters in their investigations, but of other investigativetechniques and methods utilized during the course of the investigation. Knowing the role of exigent letters and other techniques the FBI used in investigations would provide FBI subjects and their associates with valuable insight into how the FBI conducts its investigations. (84) Finally, for the reasons discussed in paragraph 48 of my declaration, revealing information concerning the cooperation with a foreign entity is reasonably likely to result in harm to national security. Revealing the identity of FBI Field Of?ces in the context of discussing a speci?c investigation or type of investigation could reasonably be expected to cause harm for the reasons articulated in paragraph 57 of my declaration. (85) Information in this category was withheld from pages E-64, E-l47 E- 150, E-152 155, E-159 168, E-170 E-189, E-193 E-195, and E-197 E-202. With the exception of a few redactions on pages En197-202, this information is also exempt from release pursuant to exemption See infra 1111 107-1 10. (86) I have reviewed all information discussed above in paragraphs 81 through 34 85 and determined that the information is properly classi?ed, at the TOP SECRET level because the release of the information could reasonably be expected to cause grave damage to the national security. The information discussed above meets the criteria for classi?cation set forth in Section 1.4(c) of ED. 13526. Information regarding FBI investigations, investigative techniques and methods, the scope and limitations of collections and investigations, and the analytical tools and methodologies that the FBI applies to collection and investigations meets the criteria set forth in 1.4 EXEMPTION PRIVILEGED INFORMATION (87) FOIA Exemption has been construed to exempt documents or information normally privileged in the civil discovery context, and incorporates, among others, the attorney-client and deliberative process privileges. The attorney-client privilege protects communications from a client to an attorney and from an attorney to a client made for the purpose of seeking or providing legal advice that were intended to be, and in fact were, kept con?dential. The deliberative process privilege protects predecisional, deliberative communications that are part of a process by which agency decisions are made. It protects opinions, advice, evaluations, deliberations, proposals, or recommendations that form part of an agency decision-making process, as well as the selection and sorting of factual information relied upon as part of the decision-making proces (88) In order to apply OIA Exemption agencies must ?rst satisfy the threshold requirement - i. e. show the information protected was ?inter-agency or intra- agency.? Once the threshold is satis?ed, agencies must satisfy the elements of the pertinent 35 privilege. With respect to the attorney-client privilege, agencies must show the withheld information concerns information shared by a client with an attorney for the purpose of obtaining legal advice or assistance, or legal advice or assistance provided by an attorney to a client, and that the communication was intended to be and was in fact kept con?dential. With respect to the deliberative process privilege, agencies must show the withheld information is both predecisional i.e. antecedent to a ?nal agency decision and deliberative i. e. part of the process in which the agency engaged in an effort to reach a ?nal decision (whether or not any ?nal decision was ever reached). 5 -1 Attorney-Client Privilege (89) In Category the FBI redacted attorney-client communications based on the attorney-client privilege, at times in conjunction with the deliberative process privilege. Redactions made based on the attorney?client privilege have been applied to communications between a client?the FBI via its Special Agents (?SAS?))?and agency attorneys that include analysis by agency counsel undertaken for the purpose 'of formulating the agency?s legal position and that provided legal guidance to SAs in reference to telephone subpoenas requested by the FBI. These communications were intended to be, and in fact were, kept con?dential, and disclosure of their contents would impede FBI attorneys from freely providing information and legal guidance to different divisions within the FBI. (90) Public release of this material would impede effective agency decision- making, by chilling communication between FBI Special Agents and FBI counsel. If such communications may be made public, SAs may be less likely to offer unfettered points of view to their agency counsel, and agency counsel may be less likely to offer candid advice 36 to their client. Open communication between FBI Special Agents and FBI counsel is invaluable when formulating investigative plans, discussing the legal requirements to execute certain investigative techniques, and discussing what evidence would be necessary to mount a successful prosecution. Consequently, the FBI properly withheld this information pursuant to FOIA Exemption (mm-2 Deliberative Process Privilege (91) Exemption the deliberative process privilege, which at times is relied upon in conjunction with the attorney-client privilege, protects certain inter- and intra- agency records to prevent the premature disclosure of proposed policies, avoid public confusion generated by draft or unadopted rationales/decisions, and to maintain the integrity of the agency decision-making process by encouraging open, candid discussions. Material that contains or was prepared in connection with the formulation of opinions, advice, evaluations, deliberations, policy formulation, proposals, conclusions or recommendations may properly be withheld. Release of this information would have an inhibitive effect upon the development of policy and the administrative direction of an agency because it would chill full and frank discussion between agency personnel regarding a decision. If agency personnel know that their preliminary opinions, evaluations, and comments may be released for public consumption, they may be more circumspect in what they put in writing, and thereby impede candid discussion of important policy issues. Thus, under the deliberative process privilege, material that contains or was prepared in connection with the formulation of policies concerning FBI subpeonas of telephone records was withheld. The information withheld includes discussions between FBI counsel and various operational divisions concerning draft FBI policies and manuals. The discussions 10 Exemption has been asserted on Bates Numbered pages: E-149-150, 154, and 197-202. 37 concerned the FBI National Security Branch?s need for guidance regarding particular investigative techniques and associated legal authorities. This withheld material is predecisional because the discussions preceded ?nal decisions as to the adoption of particular FBI policies and manuals. The withheld material is deliberative because the discussions represent ongoing deliberations by FBI counsel and other personnel regarding the authorization of particular techniques. Release of this information would have an inhibiting effect upon agency policy development as it would chill full and frank discussion among agency personnel regarding pertinent policy decisions. None of the material withheld based on the deliberative process privilege has. been publicly disclosed. Consequently, the FBI properly withheld this information pursuant to FOIA Exemption EXEMPTION 7 THRESHOLD (92) Before an agency can invoke any of the harms enumerated in Exemption it must ?rst demonstrate that the records or information at issue were compiled for law enforcement purposes. Pursuant to 28 U.S.C. 533, 534, and Executive Order 12333 as implemented by the Attorney General?s Guidelines for Domestic FBI Operations and 28 0.85, the FBI is the primary investigative agency of the federal government, with authority and responsibility to investigate all violations of federal law not exclusively assigned to another agenCy, to conduct investigations and activities to protect the United States and its people from terrorism and threats to national security, and to further the foreign intelligence objectives of the United States. Under this investigative authority, the responsive records herein were compiled for the following speci?c law enforcement purposes. 11 Exemption has been asserted on Bates Numbered pages: and 197-202. 38 (93) The pertinent records were compiled and/or created in furtherance of law enforcement, national security, and intelligence missions, which entail inherent tasks and operational functions, including the identi?cation, development, and implementation of law enforcement and intelligence gathering methods, techniques, procedures, and guidelines. The OIG reports pertaining to the FBI and other government agencies? collection policies and procedures contain vital information used by the FBI and other government agencies to develop, implement, and/or improve their law enforcement initiative in furtherance of their missions. Furthermore, the speci?c information withheld from the reports by the FBI pursuant to Exemption 7 consists of material compiled in connection with FBI law enforcement and national security investigations. (94) Thus, the records and information at issue were compiled for law enforcement purposes; and the withheld information readily meets the threshold requirement of Exemption EXEMPTION [1 PENDINGLAW ENFORCEMENT PROCEEDINGS (95) 5 U.S.C. 552 exempts from disclosure: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings. (96) Application of this exemption requires: the exiStence of law enforcement records or information; a pending or prospective law enforcement proceeding; and a determination that release of the information could reasonably be expected to interfere with the enforcement proceeding. Typically, the FBI asserts Exemption for a variety of different documents in an investigative ?le, which the FBI then groups into functional categories and describes in greater detail. In this case, however, the FBI has asserted 39 Exemption in a limited fashion, in the Exigent Letters Report, to protect names of FBI subjects and techniques and procedures pertaining to a pending FBI investigation likely to result in law enforcement proceedings. The release of speci?c subjects and their associates and other speci?c information regarding an on-going FBI investigation could reasonably be expected to result not only in the acknowledgment of the existence of the investigation, but also in the identi?cation of suspects, thus jeopardizing the investigation and interfering with potential law enforcement proceedings. 12 (97) Information redacted under in the Exigent Letters Report was done in a manner to include any and all information, that if released, could reasonably be expected to disclose an ongoing counterterrorism investigation involving a foreign goVernment. This investigation is still active, and its nature has not been publicly revealed. Disclosure of the redacted information would enable the public to determine the existence and nature of the active investigation. Disclosure of such detail could reasonably be expected to interfere with the investigation. First, public disclosure of the existence and nature of the investigation would alert the subjects and their associates of the investigation and their status as FBI subjects. This could reasonably be expected to cause them to take measures to evade FBI scrutiny and destroy evidence. Second, the FBI is conducting the investigation in cooperation with a foreign government. Public revelation of the existence of the speci?c investigation could reasonably be expected to chill the relationship with this foreign law enforcement entity, which, in turn, could reasonably be expected to undermine the investigation. Finally, several of the redactions take pursuant to include a description of speci?c FBI techniques as applied to the investigation, along with the results of the application of those techniques. Public disclosure of these details ?2 Exemption has been asserted on Bates-numbered pages: E-159, 163, 167-168, 170, and 193-194. 40 would alert targets of investigation and their associates of certain relevant evidence that the FBI possesses about them. Disclosure of the redacted information could thus reasonably be expected to interfere with potential enforcement proceedings, either in the United States or abroad. EXEMPTIONS 6 AND OF PERSONAL PRIVACY (98) Exemption 6 exempts from disclosure ?personnel and medical ?les and similar ?les the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.? 5 U.S.C. 552(b)(6). All information that applies to a particular person falls within the scope of Exemption 6. I (99) Exemption similarly exempts from disclosure ?records or information compiled for law enforcement purposes [when disclosure] could reasonably be expected to constitute an unwarranted invasion of personal privacy.? 5 U.S.C. (100) When withholding information pursuant to these two exemptions, the FBI is required to balance the privacy interests of the individuals mentioned in the records against any public interest in disclosure. In asserting these exemptions, each piece of information was scrutinized to determine the nature and strength of the privacy interest of every individual whose name and/or identifying information appears in the documents at issue. When withholding the information, the individual's privacy interest was balanced against the public's interest in disclosure. For purposes of these exemptions, a public 13 The practice of the FBI is to assert Exemption 6 in conjunction with Exemption Although the balancing test for Exemption 6 uses a standard of ?would constitute a clearly unwarranted invasion of personal privacy? and the test for Exemption 7 (C) uses the lower standard of ?could reasonably be expected to constitute an unwarranted invasion of personal privacy,? the analysis and balancing required by both exemptions is suf?ciently similar to warrant a consolidated discussion. The privacy interests are balanced against the public?s interest in disclosure under both exemptions. 41 interest exists only when information about an individual would shed light on the performance of its mission to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners. In each instance where information was withheld pursuant to Exemptions 6 and the FBI determined that the individuals? privacy interests outweighed any public interest in disclosure. (b11614 and gbpg7ng1-l Names and/or Identifying Information of Third Parties of Investigative Interest (101) The FBI has asserted Exemptions and to protect the names and identifying information of third-party individuals who were of investigative interest to the FBI and/or other law enforcement agencies. Identifying information withheld concerning these third parties includes names and other personal information. Being linked with any law enforcement investigation carries a strong negative connotation and a stigma. Release of the identities of these individuals to the public could subject them to harassment or embarrassment, as well as undue public attention. Accordingly, the FBI has determined that these individuals maintain a substantial privacy interest in not having their identities disclosed. In making a determination whether to release the names and personal information concerning these third parties, the public?s interest in disclosure was balanced against these individuals? right to privacy. The FBI determined that this information would not enlighten the public on how the FBI conducts its internal operations and investigations. Accordingly, the FBI concluded that the disclosure of this information would constitute a clearly unwarranted and unwarranted invasion of their personal privacy. The FBI properly withheld this information pursuant to OIA Exemptions and 42 FOIA EXEMPTION CONFIDENTIAL SOURCE INFORMATION (102) Exemption protects ?records or information compiled for law enforcement purposes? when disclosure could reasonably be expected to disclose the identity of a con?dential source, including a State, local or foreign agency or authority or any private institution which furnished information on a con?dential basis, and, in the case of a record or information compiled by a criminal law enforcement agency conducting a lawful national security intelligence investigation, information furnished by a con?dential source. 5 U.S.C. (103) Numerous con?dential sources report to the FBI on a regular basis; they provide information under express assurances of con?dentiality and are ?informants? within the common meaning of the term. Others are interviewed and/or provide information under implied assurances of con?dentiality e. under circumstances from which assurances of con?dentiality may be inferred). In either situation, these sources are considered to be con?dential because they furnish information only with the understanding that their identities and the information they provided will not be divulged outside the FBI. Information provided by these sources is singular in nature, and if released, could reasonably be expected to reveal their identities. The FBI has learned through experience that sources assisting, cooperating with, and providing information to the FBI must be free to do so without fear of reprisal. The FBI has also learned that sources must be free to furnish information to the FBI with complete candor and without the understandable ?4 Exemptions and has been asserted on Bates Numbered pages: E-86-94, 97, 102-110, 112- 113, 220, 233-235, 239-241, and 243-252. 43 tendency to hedge or withhold information because of fear that their cooperation with the FBI will later be made public. Sources providing information to the FBI should be secure in the knowledge that their assistance and their identities will be held in con?dence. (104) The release of a source?s identity would forever eliminate that source as a future means of obtaining information. In addition, when the identity of one source is revealed, that revelation has a chilling effect on the activities and cooperation of other sources. Such a result would eliminate one of the most important means of collecting information and thereby severely hamper law enforcement efforts to detect and apprehend individuals engaged in the violation of federal criminal laws. (bung-l Names and/or Information Provided By Individuals Under an Implied Assurance of Confidentiality (105) Exemption has been asserted, in conjunction with Exemptions and to protect the names, identifying information, and/or information provided by third parties under an implied assurance of confidentiality. (106) The FBI has withheld information that could clearly identify the sources. The information withheld pertains to identity and information provided by individuals with direct or indirect knowledge of terrorism activities due to their positions and/or direct or indirect association with other terrorists. These sources provided detailed and singular information pertaining to other terrorists. This information is only known to a limited group of individuals. The information provided by these sources was proven reliable. The sensitivity of the information provided by these sources and their'position in relation to other terrorists, make it reasonable to infer that these sources provided this information under the belief that their identities as well as the information they provided would remain in con?dence. As discussed earlier, the disclosure of the identities could place these 44 individuals in danger, due to the violent nature of individuals involved in terrorist activities. Release of their identities and/or information they provided is in direct contradiction to the interests of the FBI. If the FBI were forced to disclose the identity of -- and information provided by -- a confidential source who provided information based on an expectation of con?dentiality (whether express or implied), such disclosure would have a chilling effect on the activities and cooperation of this and other future FBI con?dential sources. The FBI has released as much segregable information as possible without disclosing the sources? identities. As a result, the FBI has properly withheld this information pursuant to FOIA Exemption at times, in conjunction with Exemptions and 1.15 EXEMPTION -- INVESTIGATIVE TECHNIQUES AND PROCEDURES (107) Exemption protects records or information compiled for law enforcement purposes when release ?would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.? 5 U.S.C. (108) Within the responsive documents, Exemption has been applied to non-public investigative techniques and procedures utilized by the FBI to pursue its law enforcement and intelligence gathering missions, and also to non?public details of techniques and procedures that are otherwise known to the public. The FBI asserted Exemption to protect sensitive investigative techniques and procedures utilized by the FBI in conducting national security investigations. (109) The reasoning for protecting this information cannot be examined in ?5 Exemption has been asserted on Bates Numbered pages: E-239, 243, and 245-246. 45 a vacuum, but must be analyzed within the larger context of our country?s current national security climate. The FBI is charged with protecting the nation from security risks posed by US and non-US. individuals, organizations (such as terrorist groups), and foreign entities that seek harm against the United States. Thus, if speci?c investigative techniques or procedures are made public, those individuals, organizations, terrorist groups, and foreign entities can use the information to learn the tactics in gathering information and can develop countermeasures to avoid detection. Sensitive Investigative Techniques and Procedw (110) In most instances where the FBI asserted Exemption it asserted in conjunction with and also, in many instances, As described in paragraphs 35 -69 and 81-85 above, the information withheld pursuant to and if released, would disclose techniques and procedures for law enforcement investigations, in particular, national security investigations. Furthermore, although not necessary for the exemption to apply, as described above, release of this information regarding law enforcement techniques and procedures could reasonably be expected to allow FBI subjects and associates to circumvent the law. (111) In addition to information withheld pursuant to in conjunction with and the FBI withheld information pursuant to only (or, in one case, in conjunction with in the FBI Section 215 Review, FBI Section 702 Report, and the FBI Exigent Letters Review.17 This information withheld pursuant to 16 Exemption has been asserted in conjunction with and on the following pages: E-14-15, 19, 28, 32-34, 36, 43-47, 49-50, 64, 77, 86-94, 97,102-110,112-113,115-116, 118,120-121,123-129,l31-140, 142, 147-150, 152-155, 159-168, 170-189, 193-195, 202, 204-228, 230-231, 233-235, 239-241, 243~252, 265, 292, 367,-369, and 371. 17 Exemption has been asserted not in conjunction with and/or on the following pages: E-117, 125, 126, 128, 129, 159, 169, 170 (in conjunction with and 226. 46 if disclosed, would reveal the following non-public information regarding techniques and procedures used by the FBI in criminal and national security investigations: First, on page E-125, the FBI withheld information regarding statistics related to US. Persons and Persons named as subjects or otherwise affected by Section 2l 5 applications in the years OIG was tasked to examine. Second, on page E-126, the FBI withheld, in a table titled ?Types of Records Requested in Pure Section 215 Applications Processed in 2006 and Approved by the FISA Court,? information regarding types of records requested and number of approved applications. Third, on page E-126, the FBI withheld, in a table titled ?Types of Records Requested in Pure Section 215 Applications Processed in 2006 and Withdrawn,? types of records requested and number of withdrawn applications. Fourth, on page E-117, the FBI withheld, in a table titled ?Types of Records Requested in Pure Section 215 Orders,? types of records requested and number of requests for the years that OIG was tasked to examine. Releasing the preceding information would disclose how and from where the FBI collects information by way of Section 215 business orders, and the methodologies used to analyze the information. The use of Section 215 business orders is a known public fact; however, the precise number of applications for such orders, the types of applications that were approved and withdrawn, and the number of requests are not known. Releasing information regarding speci?c applications, the types of applications, whether they were approved or withdrawn, and the number of requests would highlight the activities, facts, or occurrences that are of particular interest to the FBI in national security investigations. Publicly disclosing this information would inform FBI subjects and associates of the kinds of information the FBI is interested in capturing and would afford them the opportunity to employ countermeasures to circumvent detection. 47 Fifth, on page E-117, the FBI withheld the number of Field Of?ces that applied for Section 215 orders approved in calendar years 2004 and 2005. Release of such information would disclose information pertaining to the number of active investigations and how the FBI focuses its investigative efforts. Disclosure of this information would also shed light on the effectiveness of this investigative tool during speci?c years. Sixth, on page E-128, the FBI withheld operational details pertaining to procedures by which certain types of communications were targeted. Release of such information would provide FBI subjects and associates a unique insight into operational timing and pace and what information is of operational signi?cance to the FBI. With such insight into the procedures by which certain types of communications were targeted, FBI subjects and associates could attempt to mask their facilities, or their identities from the FBI in an attempt to thwart detection. They could begin ?dropping? facilities and using alternative methods of communications that may not be known to the FBI. Seventh, on pages E-159 and -169, the FBI withheld the identities of the FBI Field Of?ce and US. Attorney?s Of?ce that have program management responsibility for a particular ongoing investigation. Release of this kind of information, in the aggregate, could allow a potential criminal to piece together seemingly random bits of information to form a mosaic as to how the FBI assigns and directs resources to speci?c Field Of?ces. If FBI targets and associates know where the national security resources are directed, they may alter their activities or move their operational planning to areas that may not have as many resources, or have lower incidents of arrest and prosecution, thereby allowing them to thwart detection. Eighth, on page E- 170, pursuant to in conjunction with the FBI withheld information regarding the use of a particular investigative technique in an ongoing investigation. 48 Release of this information would alert potential criminals to the employment of the technique in a particular context, risking circumvention of that technique. Ninth, on page the FBI withheld information that would disclose the scope of the implementation of a particular method in national security investigations. While the method is public, the details of its implementation are not. Release of the redacted information might alert FBI subjects and associates to gaps or loopholes in the implementation of the investigative technique and allow. them to thwart surveillance. (112) To describe the investigative techniques at issue in further detail would highlight the very information the FBI seeks to protect pursuant to this exemption. Revealing details about analysis techniques commonly used in national security investigations, including the circumstances under which they are used, would highlight the types of activities, facts, and occurrences of particular interest to the FBI in national security investigations, thus enabling the targets of those techniques to avoid detection or develop countermeasures to circumvent the ability to effectively use such critical law enforcement techniques in current and future national security investigations. Accordingly, the FBI properly withheld this information pursuant to FOIA Exemption CONCLUSION (113) The FBI processed and released all reasonably segregable non-exempt information from documents responsive to plaintiffs? FOIA requests. Information in the pages challenged by the plaintiffs was properly withheld pursuant to FOIA Exemptions and After a careful and extensive review of the documents at issue, I have determined that there is no further 49 non-exempt information that can be reasonably segregated and released Without revealing exempt information. Pursuant to 28 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this A day of December, 2015. LL 0 v/?x Mylo M. HARDY Section Chief e? Ion Record/Information Dissemination Records Management Division Federal Bureau of Investigation Winchester, Virginia 50