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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY and
CHARLIE SAVAGE,
OPINION AND ORDER
Plaintiffs,
15 Civ. 5740 (ER)
- against UNITED STATES DEPARTMENT OF
THE TREASURY,
Defendant.

Ramos, D.J.:
The New York Times Company and reporter Charlie Savage (together, “the Times”)
bring this suit to challenge the response by the Department of the Treasury (“Treasury”) to a
request under the Freedom of Information Act (“FOIA”). Treasury has moved for summary
judgment. The Times opposes the motion and seeks an order from the Court directing Treasury
to conduct a new search and make available two of its officials for depositions. For the below
reasons, Treasury’s motion is GRANTED in part and DENIED in part. Treasury is further
directed to make additional submissions detailing the search it already performed, but the Court
declines to order a new search or depositions at this time.
I. BACKGROUND
A. Factual Background and Prior Proceedings
Under the Foreign Intelligence Surveillance Act of 1978 (“FISA”), targets of electronic
surveillance are entitled to notice when the Government intends to use surveillance evidence
against them in a legal proceeding. See 50 U.S.C. § 1806(c). On September 30, 2014, the Times
submitted to Treasury a request under FOIA (the “Request”) seeking:

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[A]ccess to documents showing the legal conclusions accepted by the Treasury
Department as the governing legal protocol for under what circumstances, if any,
and at what stage of the process, FISA’s notice provision applies to Office of
Foreign Assets Control sanctioning decisions and challenges to them.
Declaration of David E. McCraw (“McCraw Decl.”) (Doc. 29), Ex. A (“Request”). The Office
of Foreign Assets Control (“OFAC”) is the unit within Treasury that imposes and administers
economic sanctions against foreign entities suspected of engaging in international terrorism. 1
Treasury FOIA Officer Marshall H. Fields, Jr. (“Fields”) responded to the Request on
April 13, 2015 (the “Fields Reply”). See McCraw Decl., Ex. B (“Fields Reply”). He reported
that Treasury had found one thirteen-page memo (the “Memo”) that was “responsive” to the
Request, but that Treasury was withholding the Memo under FOIA Exemption 5, which exempts
from disclosure “inter-agency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). Fields specifically invoked the attorney-client privilege and the deliberative-process
privilege to justify withholding under Exemption 5. Fields Reply at 1. 2
The Times appealed on April 16, 2015 (the “Times Appeal”). The Times argued that the
fact that the Memo was deemed “responsive” to a request for “legal conclusions accepted by the
Treasury Department as the governing legal protocol” necessarily meant that the document

1
The request arose from Plaintiff Savage’s reporting that the Obama Administration was internally debating the
extent of Treasury’s notice obligations under FISA when it uses warrantless surveillance evidence to designate
foreign terrorists. See Charlie Savage, Debate Brews Over Disclosing Warrantless Spying, N.Y. TIMES, Oct. 1,
2014, at A3, available at http://www.nytimes.com/2014/10/01/us/debate-simmers-over-disclosing-warrantlessspying.html.
2

Exemption 5 authorizes agencies to withhold “documents that would be subject to privilege in civil litigation.”
Adamowicz v. I.R.S., 552 F. Supp. 2d 355, 361 (S.D.N.Y. 2008). “The deliberative process privilege applies to
documents that are predecisional and deliberative. A document is predecisional if it is ‘prepared in order to assist an
agency decisionmaker in arriving at his decision’ and deliberative if it is ‘actually related to the process by which
policies are formulated.’” N.Y. Times v. U.S. Dep’t of Justice, 101 F. Supp. 3d 310, 318 (S.D.N.Y. 2015) (quoting
Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 194 (2d Cir. 2012)).

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contained Treasury’s “effective law and policy,” i.e., Treasury’s “working law,” and thus must
be disclosed. See McCraw Decl., Ex. C (“Times Appeal”) at 2–3. 3
The Times Appeal was denied on May 21, 2015 by John E. Smith (“J. Smith”), Acting
Director of OFAC, and the instant suit was initiated on July 22, 2015. See McCraw Decl., Ex. D;
Complaint (Doc. 1). Because Treasury represented that the Memo was responsive to the
Request, the Times opted not to challenge the adequacy of Treasury’s search, focusing instead
solely on the question of whether the Memo was properly withheld under Exemption 5. See
Joint Letter (Doc. 13) at 2.
Treasury moved for summary judgment on December 23, 2015. (Doc. 17). In support of
its motion, Treasury submitted a declaration from Bradley T. Smith (“B. Smith”), Chief Counsel
for Foreign Assets Control at Treasury (the “B. Smith Declaration”). See McCraw Decl., Ex. E
(“B. Smith Decl.”) ¶ 1. The B. Smith Declaration explained that the Memo is a “draft
memorandum” and “does not reflect a final legal or policy determination by Treasury,” and thus
was actually not responsive to the “aspect” of the Request seeking “governing legal protocol.”
Id. at ¶ 7. Nevertheless, according to B. Smith, the Memo was deemed responsive under a
“liberal construction” of the Request because the Memo contains “draft legal analysis” of the
specific topic of OFAC’s notice obligations under FISA. Id. The B. Smith Declaration further
states that the Memo was prepared by “certain Treasury attorneys” in advance of a meeting with

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A document must be disclosed under FOIA if it includes “an opinion or interpretation” that “embodies the
agency’s effective law and policy,” in other words, its “working law.” Brennan Ctr., 697 F.3d at 195 (internal
quotation marks omitted) (quoting N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). “The reasons for a
decision made by an agency” or “a policy actually adopted” constitute “‘the working law of the agency.’” Id. at 196
(quoting Sears, Roebuck, 421 U.S. at 153). The “working law analysis is animated by the affirmative provisions of
FOIA,” which generally require disclosure of “final opinions, statements of policy and interpretations which have
been adopted by the agency, and instructions to staff that affect a member of the public.” Id. at 200–01 (quoting
Sears, Roebuck, 421 U.S. at 153) (internal quotation marks omitted). Neither the attorney-client privilege nor the
deliberative-process privilege can be invoked to justify withholding a document that contains an agency’s working
law. See N.Y. Times, 101 F. Supp. 3d at 318–19 (citations omitted).

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the Justice Department “to help frame issues subject to ongoing deliberative discussions,” and
memorialized only “initial, preliminary advice.” Id. at ¶¶ 15–16. The declaration also states that
the Memo does not contain any working law because it “does not have the force and effect of
law within Treasury,” and because “the underlying legal analysis and reasoning in the
memorandum has not been adopted by Treasury” or “used as a reference document by OFAC
personnel.” Id. at ¶ 16.
The Times then moved the Court for permission to take depositions of Fields, J. Smith,
and B. Smith to better understand the contours of Treasury’s response. (Doc. 27). In opposition,
Treasury submitted additional declarations from Fields and J. Smith. (Docs. 34–36). The
declaration from Fields explained that he assigned the Request to subject-matter experts
(“SMEs”) within OFAC and the Office of Chief Counsel (Foreign Assets Control) (“OCC”), 4
who searched for and produced the Memo, and then recommended that Fields deem the Memo
responsive but exempt from disclosure under the attorney-client and deliberative-process
privileges. See Declaration of Marshall H. Fields, Jr. (Doc. 35) ¶¶ 10–19. The declaration from
J. Smith states that he did not make his own responsiveness determination, but rather only
reassessed, and ultimately agreed with, the determination to withhold the Memo under
Exemption 5 because it did not contain any working law. See Declaration of John E. Smith
(Doc. 36) ¶¶ 10–11.
The Court denied the Times’ request for depositions but ordered Treasury to submit an
additional declaration from Fields to describe in further detail his own individual basis for

4

OCC provides “legal services with respect to the implementation, interpretation, and enforcement of economic
sanctions programs administered by the Office of Foreign Assets Control (OFAC).” Supplemental Declaration of
Bradley T. Smith (Doc. 45) ¶ 2.

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deeming the Memo responsive. See N.Y. Times Co. v. U.S. Dep’t of the Treasury, No. 15 Civ.
5740 (ER), 2016 WL 1651867, at *5 (S.D.N.Y. Apr. 26, 2016).
B. Proceedings Following the Court’s April 26, 2016 Order
Treasury submitted the supplemental declaration from Fields on May 13, 2016. See
Supplemental Declaration of Marshall H. Fields, Jr. (“Supp. Fields Decl.”) (Doc. 39). Fields
explained that he assigned the Request to OCC because OCC is considered the SME “with
respect to records containing legal equities.” Supp. Fields Decl. ¶ 8. Fields further explained
that he “relied exclusively on OCC’s determination regarding the responsiveness and privileged
nature” of the Memo and did not conduct his own “independent analysis of the responsiveness of
the [Memo].” Id. at ¶ 10. “Rather, because of the legal nature of the record, [Fields] relied on
the determination of OCC, the SME, that the [Memo] should be treated as responsive….” Id.
The Times submitted its opposition to Treasury’s motion for summary judgment on May
26, 2016, but declined to file its own cross-motion for summary judgment, effectively conceding
that there was no basis in the evidentiary record to challenge Treasury’s representations about the
deliberative, predecisional nature of the Memo and the resulting withholding of that document.
See Memorandum of Law in Opposition (“NYT Opp’n”) (Doc. 42) at 8 (“The Times concedes
that without discovery it has no basis for summary judgment as to the Treasury Legal Memo.”).
Instead, accepting Treasury’s declaration that it did not locate any document containing
“governing legal protocol,” the Times now challenges the adequacy of Treasury’s initial search
and seeks an order from the Court directing Treasury to undertake a new search and produce B.
Smith and Fields for depositions. Id. at 8–9; Letter Motion (“NYT Letter”) (Doc. 46) at 3.
Treasury objects to this request, arguing first and foremost that the Times both did not
include a challenge to the search’s adequacy in its complaint and waived that challenge by

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failing to raise it until opposing Treasury’s summary-judgment motion. See Defendant’s Reply
(“Gov. Rep.”) (Doc. 44) at 4–5. Treasury also takes the search adequacy issue head on, briefing
it and submitting an additional declaration from B. Smith (the “Supp. Smith Declaration”) to
substantiate the adequacy of the search that was performed. See Supplemental Declaration of
Bradley T. Smith (“Supp. Smith Decl.”) (Doc. 45); Gov. Rep. at 5–10.
II. DISCUSSION
This is an unusual FOIA case that has been stymied by miscommunication. The Times is
right to say that the Request was crafted unambiguously to reach only working law, and that
Treasury should have explained from the outset its liberal interpretation of the Request and the
fact that the Memo did not contain “governing legal protocol.” That explanation from Treasury,
while now accepted as true by the Times, came late enough in the litigation process that the
Times’ failure to challenge the adequacy of the search up to this point is understandable. On the
other hand, the Times cannot claim total surprise by Treasury’s representations in this litigation,
given that Treasury has consistently invoked the deliberative-privilege process and expressly
denied the applicability of the working law theory on appeal—while it was possible that
Treasury was taking an inherently contradictory position (i.e., arguing that a document
containing “governing legal protocol” did not contain working law), the Times should have been
quicker to challenge the adequacy of a search that turned up only one document that Treasury
was insisting to be predecisional and deliberative, and not working law.
All things considered, and assessing the potential prejudice to both sides, the Court in its
discretion will consider the Times’ challenge to the search’s adequacy on the merits. Cf.
Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001).

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“In order to prevail on a motion for summary judgment in a FOIA case, the defending
agency has the burden of showing that its search was adequate….” Carney v. U.S. Dep’t of
Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citations omitted). If “the record leaves substantial
doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” N.Y.
Times Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 517 (S.D.N.Y. 2007) (quoting Campbell v.
U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998)).
“An agency’s search is adequate when it is ‘reasonably calculated to uncover all relevant
documents’ and the agency can ‘demonstrate beyond material doubt that the search was
reasonable.’” Nat’l Immigration Project of the Nat. Lawyers Guild v. U.S. Dep’t of Homeland
Sec., No. 11 Civ. 3235 (JSR), 2012 WL 6809301, at *3 (S.D.N.Y. Dec. 27, 2012) (quoting Truitt
v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “[W]hen a plaintiff questions the
adequacy of the search an agency made in order to satisfy its FOIA request, the factual question
it raises is whether the search was reasonably calculated to discover the requested documents,
not whether it actually uncovered every document extant.” Grand Cent. P’ship, Inc. v. Cuomo,
166 F.3d 473, 489 (2d Cir. 1999) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 1991)) (internal quotation marks omitted). “Under this standard, the relevant question
‘is not whether there might exist any other documents possibly responsive to the request, but
rather whether the search for those documents was adequate’ under the particular circumstances
of the case.” Bloomgarden v. U.S. Dep’t of Justice, 10 F. Supp. 3d 146, 152 (D.D.C. 2014)
(quoting Weisberg v. U.S. Dept. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
“Affidavits or declarations supplying facts indicating that the agency has conducted a
thorough search…are sufficient to sustain the agency’s burden” and “are accorded a presumption
of good faith.” Long v. Office of Pers. Mgmt., 692 F.3d 185, 190–91 (2d Cir. 2012) (quoting

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Carney, 19 F.3d at 812) (internal quotation marks omitted). In its submissions, an agency must
“identify the searched files and describe at least generally the structure of the agency’s file
system,” explain why “further search[es] [are] unlikely to disclose additional relevant
information,” establish that “they searched all custodians who were reasonably likely to possess
responsive documents,” and set forth “the search terms and the type of search performed.” Nat’l
Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 877 F. Supp. 2d 87, 96
(S.D.N.Y. 2012) (citations and internal quotation marks omitted); see also, e.g., Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (“A reasonably detailed affidavit, setting forth
the search terms and the type of search performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched, is necessary to afford a FOIA
requester an opportunity to challenge the adequacy of the search and to allow the district court to
determine if the search was adequate in order to grant summary judgment.”); Nat’l Immigration
Project, 2012 WL 6809301, at *4 (“An agency’s affidavits or declarations should set forth the
search terms and the type of search performed….[and must] supply more than glib government
assertions of complete disclosure or retrieval.”) (citations and internal quotation marks omitted).
The Supp. Smith Declaration describes Treasury’s search in response to the Request. It
first explains that OFAC’s FOIA office initially assigned the search to OCC plus four other
individuals within OFAC—the Director, the Deputy Director, the Associate Director in the
Office of Global Targeting, and an Administrative Management Specialist for assistance
searching the emails of OFAC’s former Deputy Director. Supp. Smith Decl. ¶ 6. From there,
“based on the narrow legal issue raised,” OCC determined that only two OCC attorneys could
have records “potentially responsive” to the Request—B. Smith himself, and “one other
attorney.” Supp. Smith Decl. ¶ 7. B. Smith conducted a search of his emails, paper files, and

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computer files. Id. at ¶ 8. The other OCC attorney “had been working on FISA issues in [OCC]
for several years, and was familiar with the FISA-related records in his possession as well as
certain records maintained by [OCC] based on recent searches that he had performed in
connection with this work.” Id. at ¶ 9. Accordingly, this other attorney “was able to provide a
response to the FOIA request without conducting an additional physical or electronic search of
his records,” identifying the Memo as the only “potentially responsive document,” even under a
liberal interpretation of the Request. Id. at ¶¶ 9–10. The declaration further represents that OCC
“would have been aware of and involved in the drafting” of any documents or “governing legal
protocol” regarding the applicability of FISA’s notice provisions to OFAC’s sanctioning
decisions. Id. at ¶ 11. Thus, “based on the subject matter” of the Request and OCC’s
“familiarity with those in Treasury who had been engaged on the issue,” B. Smith and his
colleague determined that no one else in OFAC would have any other potentially responsive
documents, nor was B. Smith aware of the existence of any such documents, which he attests he
would have been if such documents had existed, “given the important legal questions involved.”
Id. at ¶¶ 12–13. Finally, B. Smith reconfirmed that OCC would have determined that no
responsive documents existed if the Request had been strictly construed to reach only Treasury’s
“governing legal protocol.” Id. at ¶ 15.
In requesting a new search and depositions, the Times does not argue that Treasury’s
representations are untruthful or made in bad faith, but only that they are incomplete. NYT
Letter at 2. Specifically, the Times questions (i) the other OCC attorney’s failure to conduct an
actual search, (ii) the absence of information regarding results of the searches done by the four
individual OFAC officials, (iii) the lack of details about the meeting for which the Memo was
prepared and whether such deliberations are ongoing, which “could help explain why no further

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documents were turned up,” and (iv) the absence of information regarding “whether OFAC
officials took notes or created memos to file or sent a confirming email to memorialize what was
said.” Id. at 2–3.
The Court agrees with the Times to the following extent: Treasury’s submissions thus far
do not demonstrate bad faith or lack of truthfulness, but there does remain a genuine issue of
material fact as to whether the search already completed was adequate. In other words,
Treasury’s submissions are insufficiently detailed as they stand, but the Times has not
demonstrated a need for a new search or depositions, at least at this stage.
Treasury is thus instructed to submit further affidavits or declarations describing the
adequacy of its prior search. See Beltranena v. Clinton, 770 F. Supp. 2d 175, 187 (D.D.C. 2011)
(“[W]here—as here—‘an agency’s affidavits regarding its search are deficient, courts generally
do not grant discovery but instead direct the agency to supplement its affidavits.’”) (quoting
Jarvik v. C.I.A., 741 F. Supp. 2d 106, 122 (D.D.C. 2010)). Specifically, the Court requires more
details as to the kinds of information and files housed within OCC, why the choice of custodians
was reasonable, why certain record repositories were searched while others were not, and the
search terms that were employed. See generally, e.g., Vietnam Veterans of Am. Connecticut
Greater Hartford Chapter 120 v. Dep’t of Homeland Sec., 8 F. Supp. 3d 188, 227 (D. Conn.
2014); Nat’l Sec. Counselors v. C.I.A., 960 F. Supp. 2d 101, 152–54 (D.D.C. 2013). Regarding
the four specific issues that the Times raises (listed above), the first two go to the adequacy of
the search, and Treasury should address these issues in its supplemental submissions. 5 But the

5

Treasury argues that an agency official’s preexisting familiarity with the scope and content of records may excuse
performance of a new search in response to a FOIA request. See Letter Response (Doc. 47) at 2–3. But even if that
were so, here the Court has no specific information about the other OCC attorney’s knowledge, records, or prior
searches, including the types of records previously searched and the search terms used. It may be that the OCC
attorney was justified in not engaging in a new search in response to the Request because the attorney had recently
undertaken an adequate search reasonably calculated to discover legal protocol governing FISA’s application to
sanctioning decisions, but the Court cannot determine as much on the present record. Alternatively, rather than

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last two, while perhaps illuminative of why the search did not produce a document containing
?governing legal protocol,? do not necessarily speak to whether the search?s methodology was
reasonable, and Treasury is not required to address them in supplemental submissions. That
said, additional context about whether ?governing legal protocol? exists in document form may
very well buttress Treasury?s defense of its search methodology. Cf Am. Civil Liberties Union
v. US. Dep ?i ofJusz?ice, 90 F. Supp. 3d 201, 218 (S.D.N.Y. 2015) (noting express representation
from DOJ regarding lack of ?nal written policy on application of FISA notice provisions).
CONCLUSION

Treasury?s motion for summary judgment is GRANTED as to the withholding of the
Memo pursuant to FOIA Exemption 5. It is DENIED as to the adequacy of the search, with
leave to renew following supplemental submissions and brie?ng.

Treasury is directed to submit its supplemental af?davits or declarations on or before

September 16, 2016. Treasury also has the option of submitting a supplemental brief on that

 

date, but it should be no longer than ?fteen (15) pages. The Times is then directed to submit its
own response brief on or before October 14, 2016, to be no longer than ?fteen (15) pages.
Treasury?s reply brief, no longer than ?ve (5) pages, is due on or before October 28, 2016.

The Clerk of the Court is respectfully directed to terminate the motion, Docs. 17, 46.

It is SO ORDERED.

Dated: August 2, 2016
New York, New York

4 

Edgardo Ramos, U.S.D.J.

 

justify the old search, Treasury is free to have the other OCC attorney run a new search and put in additional
submissions detailing the methodology and results of that new search.

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