Case 1:17-cv-00087-CRC Document 9 Filed 02/22/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE NEW YORK TIMES COMPANY, )
et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
)
Defendant.
)
)
)
)
)

Civil Action No. 1:17-cv-00087

ANSWER
Defendant Department of Justice hereby answers the Complaint for Injunctive and
Declaratory Relief, ECF No. 1 (“Complaint”), in the following numbered paragraphs, which
correspond to the Complaint’s numbered paragraphs:
1.

The allegations of this paragraph are legal conclusions and Plaintiff’s

characterization of this action, not allegations of fact, to which no response is required. To the
extent a response is deemed necessary, Defendant respectfully refers the Court to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, for a full and accurate statement of its contents.
2.

Defendant admits the first sentence. Defendant cannot confirm or deny the

second sentence without revealing or tending to reveal classified national-security information
that is subject to protection from disclosure by law.
3.

This paragraph does not set forth a claim for relief or aver facts in support of a

claim to which a response is required.

 Case 1:17-cv-00087-CRC Document 9 Filed 02/22/17 Page 2 of 6

4.

This paragraph does not set forth a claim for relief or aver facts in support of a

claim to which a response is required.
5.

This paragraph does not set forth a claim for relief or aver facts in support of a

claim to which a response is required.
6.

Defendant admits to receiving a FOIA request from Plaintiffs in October 2016,

and a second communication in December 2016. True and correct copies of Plaintiffs’ request
and follow up communication are attached hereto as Exhibits A and B, respectively. To the
extent that this paragraph contains a characterization of Plaintiffs’ FOIA request and follow up
communication, no response is required. Defendant respectfully refers the Court to Exhibits A
and B for a full and accurate statement of their contents.
7.

Defendant admits that it did not respond to Plaintiffs’ request within 20 business

days with a final determination of whether it will produce or withhold the requested records. To
the extent this paragraph contains a legal conclusion, no response is required.
8.

Defendant lacks sufficient information to form a belief as to the truth or falsity of

this paragraph.
9.

Defendant lacks sufficient information to form a belief as to the truth or falsity of

this paragraph.
10.

The allegations of this paragraph are legal conclusions, to which no response is

required.
11.

Admit.

12.

The allegations of this paragraph are legal conclusions, to which no response is

required.

-2-

 Case 1:17-cv-00087-CRC Document 9 Filed 02/22/17 Page 3 of 6

13.

The allegations of this paragraph are legal conclusions, to which no response is

required.
14.

The allegations of this paragraph are legal conclusions, to which no response is

required.
15.

This paragraph contains a characterization of Plaintiff’s FOIA request and follow

up communication, to which no response is required, and Defendant respectfully refers the Court
to Exhibits A and B for a full and accurate statement of their contents.
16.

Defendant admits that Plaintiffs submitted a FOIA request on October 28, 2016,

and respectfully refers the Court to Exhibit A for a full and accurate statement of its contents.
17.

Admit.

18.

Defendant admits that it did not respond to Plaintiffs’ request within 20 business

days with a final determination of whether it will produce or withhold the requested records. To
the extent this paragraph contains a legal conclusion, no response is required.
19.

Defendant admits that Plaintiffs submitted a second, follow up commmunication

on December 13, 2016, and respectfully refers the Court to Exhibit B for a full and accurate
statement of its contents.
20.

This paragraph contains a characterization of Plaintiff’s follow up

communication, to which no response is required, and Defendant respectfully refers the Court to
Exhibit B for a full and accurate statement of its contents. To the extent this paragraph contains
a legal conclusion, no response is required. To the extent that this paragraph describes Plaintiffs’
motivations, Defendant lacks sufficient information to form a belief as to its truth or falsity.

-3-

 Case 1:17-cv-00087-CRC Document 9 Filed 02/22/17 Page 4 of 6

21.

Defendant admits that it did not respond to Plaintiffs’ December 13, 2016 follow

up communication within 20 business days. To the extent this paragraph contains a legal
conclusion, no response is required.
22.

Defendant incorporates herein by reference its responses to paragraphs 1–21 of

the Complaint.
23.

The allegations of this paragraph are legal conclusions, to which no response is

required. To the extent a response is deemed necessary, Defendant respectfully refers the Court
to the Freedom of Information Act, 5 U.S.C. § 552, for a full and accurate statement of its
contents.
24.

This paragraph contains a legal conclusion to which no response is required.

Defendant admits that it has not yet responded to Plaintiff’s request with a final determination of
whether it will produce or withhold the requested records.
25.

This paragraph contains a legal conclusion to which no response is required. To

the extent a response is deemed necessary, Defendant denies.
26.

This paragraph contains a legal conclusion to which no response is required. To

the extent a response is deemed necessary, Defendant denies.
27.

Defendant incorporates herein by reference its responses to paragraphs 1–26 of

the Complaint.
28.

The allegations of this paragraph are legal conclusions, to which no response is

required. To the extent a response is deemed necessary, Defendant respectfully refers the Court
to the Freedom of Information Act, 5 U.S.C. § 552, for a full and accurate statement of its
contents.

-4-

 Case 1:17-cv-00087-CRC Document 9 Filed 02/22/17 Page 5 of 6

29.

This paragraph contains a legal conclusion to which no response is required.

Defendant admits that it has not yet responded to Plaintiff’s December 13, 2016 follow up
communication with a final determination of whether it will produce or withhold the requested
records.
30.

This paragraph contains a legal conclusion to which no response is required. To

the extent a response is deemed necessary, Defendant denies.
31.

This paragraph contains a legal conclusion to which no response is required. To

the extent a response is deemed necessary, Defendant denies.
The remainder of the Complaint consists of Plaintiffs’ prayer for relief, to which no
response is required. To the extent a response is deemed necessary, Defendant denies and avers
that the Plaintiff is not entitled to any relief.
DEFENSES
1.

Defendant has exercised due diligence in processing Plaintiff’s FOIA request and

exceptional circumstances exist that necessitate additional time for Defendant and its component
to complete the processing of Plaintiff’s FOIA requests. See 5 U.S.C. § 552(a)(6)(c).
2.

Plaintiff is not entitled to compel production of records exempt from disclosure by

one or more exemptions of the FOIA, 5 U.S.C. § 552.
Defendant’s actions did not violate the FOIA or any other statutory or regulatory
provision. WHEREFORE, the Court should deny the Prayer for Relief, and enter judgment
dismissing Plaintiffs’ Complaint and grant such further relief to Defendant as the Court deems
just and proper.

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 Case 1:17-cv-00087-CRC Document 9 Filed 02/22/17 Page 6 of 6

Dated: February 22, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director,
Federal Programs Branch

/s/ Julia A. Berman
JULIA A. BERMAN (D.C. Bar No. 986228)
Trial Attorney
julia.berman@usdoj.gov
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20530
Tel: (202) 616-8480
Fax: (202) 616-8470
Attorneys for Defendant

-6-

 Case 1:17-cv-00087-CRC Document 9-1 Filed 02/22/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE NEW YORK TIMES COMPANY, )
et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
)
Defendant.
)
)
)
)
)

Civil Action No. 1:17-cv-00087

EXHIBIT A

Case 1:17-cv-00087-CRC Document 9-1 Filed 02/22/17 Page 2 of 2

From:
Sent:
To:
Cc:
Subject:

Savage, Charlie <savage@nytimes.com>
Friday, October 28, 2016 4:38 PM
NSDFOIA (NSD); USDOJ-Office of Legal Counsel (SMO)
David McCraw
NYT FOIA request

Dear FOIA officers,
Under the Freedom of Information Act, I request access to (and declassification review of, as necessary), the following document:
Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality
of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of
1978, (May 24 1984).
Thank you for your assistance. Please feel free to email me the document, but if you need to mail a disc for internal procedural reasons, I am
at
c/o The New York Times
1627 I St NW
7th Floor
Washington, DC 20006

______________________
Charlie Savage
The New York Times
Phone: 202-862-0317
Cell: 202-369-6653

Case 1:17-cv-00087-CRC Document 9-2 Filed 02/22/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE NEW YORK TIMES COMPANY, )
et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
)
Defendant.
)
)
)
)
)

Civil Action No. 1:17-cv-00087

EXHIBIT B

Case 1:17-cv-00087-CRC Document 9-2 Filed 02/22/17 Page 2 of 2

From:
Sent:
To:
Cc:
Subject:

Savage, Charlie <savage@nytimes.com>
Tuesday, December 13, 2016 12:26 PM
USDOJ-Office of Legal Counsel (SMO)
David McCraw; Ian MacDougall
NYT FOIA request

Dear OLC FOIA officer,
On October 28, 2016, I submitted a request under the Freedom of Information Act for "Memorandum for the Attorney General from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Certain National Security Agency
Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1978, (May 24 1984)."
While I believe that request already implicitly encompassed the cover letter sent by Mr. Olson when transmitting the memorandum, out of an
abundance of caution I am hereby explicitly requesting access to that cover letter.
Thank you for your assistance. Please feel free to email me the document, but if you need to mail a disc for internal procedural reasons, I am
at
c/o The New York Times
1627 I St NW
7th Floor
Washington, DC 20006
______________________
Charlie Savage
The New York Times

Phone: 202-862-0317
Cell: 202-369-6653