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Exhibit 1

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

x
THE NEW YORK TIMES COMPANY
and CHARLIE SAVAGE,

Plaintiffs,
Civil Action No. 17-cv-87 (CRC)
- against U.S. DEPARTMENT OF JUSTICE,

Defendant.

DECLARATION OF PAUL P. COLBORN
I, Paul P. Colborn, declare as follows:

1.

I am a Special Counsel in the Office of Legal Counsel ("OLC") 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 OLC' s responses to requests it receives under the Freedom of Information Act
("FOIA"), 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.
OLC'S RESPONSIBILITIES
2.

The principal function of OLC is to assist the Attorney General in his role as legal

adviser to the President of the United States and to departments and agencies of the Executive

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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 to make policy
decisions, and in fact lacks authority to make such decisions. OLC's legal advice and analysis
may inform the decisionmaking of executive branch officials on matters of policy, but OLC's
legal advice is not itself dispositive as to any policy adopted.
3.

Although OLC publishes some opinions and makes discretionary releases of

others, OLC legal advice is generally kept confidential. These confidentiality concerns apply
with particular force to OLC advice because of OLC's role in the decisionmaking process: OLC
is often asked to provide advice and analysis with respect to very difficult and unsettled issues of
law. Frequently, such issues arise in connection with highly complex and sensitive activities of
the Executive Branch on matters that can be quite controversial. .So that executive branch
officials may continue to request, receive, and rely on candid legal advice from OLC on such
sensitive matters, it is essential that OLC legal advice provided in the context of internal
deliberations-and executive branch officials' willingness to seek such advice-not be inhibited
by concerns about public disclosure.
4.

There is a special relationship of trust between a client and an attorney when the

one seeks and the other provides independent legal advice. When the advice is provided in
confidence, it is protected from compelled disclosure. As the Supreme Court has observed,
"[t]he attorney-client privilege is the oldest of the privileges for confidential 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). It is
critical to protect this relationship of trust in the governmental context, t9 ensure such full and

2

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frank communication between governmental attorneys and their clients, and thereby promote
such broader public interests in the government's observance of law and the administration of
justice. The free and candid flow of information between agency decisionmakers and their
outside legal advisers depends on the decisionmakers' confidence that the advice they receive
will remain confidential. Moreover, disclosure of legal advice may often reveal confidential
communications from agency clients made for the purposes of securing advice.
5.

When asked to provide counsel on the law, OLC attorneys stand in a special

relationship of trust with their agency clients. Just as disclosure of client confidences in the
course of seeking legal advice would seriously disrupt the relationship of trust so critical when
attorneys formulate legal advice to their clients, disclosure of the advice itself would be equally
disruptive to that trust. Thus, the need to protect the relationship of trust between OLC and the
client seeking its legal advice provides an additional reason OLC legal advice often needs to stay
confidential.
6.

The interests protected by the attorney-client privilege continue to apply fully to

confidential OLC legal advice in circumstances where the Executive Branch or one of its
departments or agencies elects, in the interest of transparency, to explain publicly the Executive
Branch's understanding of the legal basis for current or contemplated executive branch conduct.
There is a fundamental distinction between an explanation of the rationale and basis for a
decision, which would not be privileged, and legal advice received prior to making a decision,
which is privileged. Thus, there is no disclosure of privileged legal advice, and therefore no
waiver of attorney-client privilege, when, as part ?f explaining the rationale for its actions or
policies, the Executive Branch explains its understanding of their legal basis without reference to
any confidential legal advice that executive branch decisionmakers may have received before

3

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deciding to take the action or adopt the policy. If merely explaining publicly the legal basis for
executive branch conduct were understood to remove the protection of the attorney-client
privilege from the confidential legal advice provided as part of the Executive Branch's internal
deliberations, it would substantially harm the ability of executive branch decisionmakers to
request, receive, and rely upon full and frank legal advice from government lawyers as part of
the decisionmaking process, and it would also harm the public by discouraging the Executive
Branch from explaining its understanding of the legal basis for its actions publicly in the future.
PLAINTIFFS' FOIA REQUEST

7.

On October 28, 2016, OLC received a request from Charlie Savage in his capacity

with the New York Times, requesting "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)." See Ex. A, at 1 (FOIA Request (Oct. 28, 2016)
(hereinafter, "the Savage Request").
8.

On December 13, 2016, OLC received a second communication from Mr. Savage,

referencing the Savage Request and stating that he believed it to encompass "the cover letter" of
the requested document, but "out of an abundance of caution," was "explicitly requesting access
to that cover letter." See Ex. B, at 1 (Savage Email (Dec. 13, 2016)).
9.

By letter dated March 10, 2017 and transmitted by counsel in this matter, I

responded to Mr. Savage on behalf of OLC, acknowledging receipt of the Savage Request and
Email and informing him that OLC had construed his request and email to seek all memoranda
by Assistant Attorney General Theodore Olson regarding surveillance dated in May 1984. See
4

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Ex. C, at 1 (OLC Response (March 10, 2017)). I further informed him that a search of OLC's
records had identified two records responsive to the request, as construed by OLC, and that the
National Security Division had also referred the same two records to OLC for processing in
response to the request directed to NSD. Id. I also informed Mr. Savage that both documents
were protected by the attorney-client privilege, and accordingly OLC was withholding them
pursuant to FOIA Exemption Five, 5 U.S.C. § 552(b)(5). Id. Finally, I informed Mr. Savage
that one of the documents contains portions that are properly classified and protected by the
National Security Act, 50 U.S.C. § 3024(i)(l), and which are therefore also exempt from
disclosure under FOIA Exemptions One and Three, 5 U.S.C. § 552(b)(l), (3). Id.

DOCUMENTS AT ISSUE
10.

I am personally familiar with the withheld documents at issue in this case.

11.

The first withheld document (Document 1) is a cover memorandum transmitting a

legal advice memorandum (Document 2). This cover memorandum contains an unclassified
partial summary of Document 2, including a description of the solicitation of advice and a
summary of the memorandum's conclusion.
12.

The second withheld document (Document 2) is a classified OLC legal advice

memorandum, addressed to the Attorney General and signed by OLC Assistant Attorney General
Theodore Olson. This memorandum was written in response to confidential communications
from an executive branch client soliciting legal advice from OLC attorneys regarding
contemplated intelligence activities. As is generally the case with OLC legal advice memoranda,
the document contains confidential client communications made for the purpose of seeking legal
advice and predecisional legal advice from OLC attorneys transmitted to an executive branch
client as part of governmental deliberative processes.

5

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13.

Shortly after OLC's response to Mr. Savage withholding the two documents,

OLC's withholding of the same two documents from another requester in response to a different
FOIA request was upheld by the United States District Court for the So'uthern District of New
York. See Am. Civil Liberties Union v. Nat'! Security Agency, No. 13 Civ. 09198 (KMW), 2017
WL 1155910, at *10-11 (S.D.N.Y. Mar. 27, 2017) ("ACLU'); see also Ex. D (ColbornACLU
Declaration, No. 13 Civ. 09198 (KMW), ECF No. 67 (Filed Feb. 26, 2016)). The documents
were identified in that case as OLC 1 and OLC 2. See Colborn ACLU Declaration ifif 21, 25 &
Ex. A (index of withheld records). The district court concluded that "OLC has sufficiently
justified its exemptions under the deliberative process and attorney-client privileges" with
respect to the ten OLC memoranda at issue in that case, including OLC 1 and 2, and the court
discussed OLC 2 specifically as an example of proper application of the privileges. ACLU, 2017
WL 1155910, at *10-11.

APPLICABLE PRIVILEGES
14.

The withheld records consist of memoranda authored by OLC containing OLC's

confidential, predecisional legal advice to assist executive branch clients in making policy
decisions. Accordingly, such records are covered by the deliberative process and/or attorneyclient privileges. Because this request was filed after the effective date of the FOIA
Improvement Act of 2016, Pub. L. No. 114-185, and the requested records were created more
than 25 years before the date of the request, OLC has not cited the deliberative process privilege
as a basis for withholding and this declaration does not discuss that privilege further. The records
remain exempt under FOIA Exemption Five pursuant to the attorney-client privilege, unless that
privilege has been lost by waiver or adoption.

6

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15.

The attorney-client privilege protects documents that contain or reflect

confidential legal advice provided by an attorney to a client, and confidential client requests for
legal advice and other confidential communications and facts conveyed by the client to the
attorney for the purpose of receiving legal. advice.
16.

The withheld documents are protected by the attorney-client privilege. The

responsive documents (a) contain confidential legal advice provided to the Attorney General for
eventual transmission to another executive branch client; and (b) reflect confidential client
information transmitted through confidential communications between OLC and an executive
branch client for the purpose of seeking and providing that legal advice. The documents thus fall
squarely within the attorney-client privilege. Having been asked to provide legal advice, OLC
attorneys stood in a relationship of trust with their executive branch client. Just as disclosure of
client confidences provided in the course of seeking legal advice would seriously disrupt the
relationship of trust so critical when attorneys formulate legal advice for their clients, so too
would disclosure of the legal advice itself undermine that trust.

Withholding Pursuant to Exemptions One and Three
17.

In connection with seeking advice from OLC, executive branch clients sometimes

provide OLC with classified information or other information specifically protected from
disclosure under FOIA by statute. OLC does not have original classification authority, but when
it receives or makes use of classified information provided to it by its clients, OLC is required to
mark and treat that information as derivatively classified to the same extent as its clients have
identified such information as classified. Accordingly, all classified information in OLC's
possession or incorporated into its products has been classified by another agency or component
with original classification authority.

7

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18.

Document 2 is marked as classified because it contains information OLC received

from another agency that was marked as classified. OLC has also been informed by the relevant
agency that information contained in the document is protected from disclosure under FOIA by
statute.
19.

Accordingly, OLC is also withholding Document 2 in part pursuant to

Exemptions One and Three. Exemption One, 5 U.S.C. § 552(b)(l), exempts documents
classified in the interest of national defense or foreign policy pursuant to an Executive Order
from disclosure under FOIA. Exemption Three, 5 U.S.C. § 552(b)(3), exempts documents
"specifically exempted from disclosure by statute" from disclosure under FOIA. As this
litigation has been bifurcated, I do not further discuss the withholdings under Exemption One
and Three here.
Segregability, Adoption, and Waiver
20.

I have personally reviewed the documents at issue to determine whether any

withheld portion or portions could be released without divulging information protected by one or
more of the applicable FOIA exemptions. All factual information contained in the documents
was provided to OLC in confidence for the purpose of seeking legal advice from OLC, and the
documents do not contain reasonably segregable, nonexempt information.
21.

To my knowledge, the documents have never been publicly adopted or

incorporated by reference by any policymaker as a basis for a policy decision.
22.

To my knowledge, the documents have not been previously disclosed publicly. In

addition, I am not aware of any public statements by government officials that could constitute
waiver of the privileges applicable to the document.

8

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*******
23.

In conclusion, I respectfully submit that the documents described herein are

protected by the attorney-client privilege. Accordingly, they fall squarely within Exemption
Five. The compelled disclosure of these documents would disrupt the attorney-client
relationship between OLC and its clients throughout the Executive Branch.
I declare under penalty of perjury that the foregoing is true and correct.
Executed: May

S, 2017, Washington, D.C.
PAUL P. COLBORN

9

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Exhibit A

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17-002 Rec'd 10/28/16

From:
To:
Cc:
Subject:
Date:

Savage, Charlie
NSDFOIA (NSD); USDOJ-Office of Legal Counsel (SMO)
David McCraw
NYT FOIA request
Friday, October 28, 2016 4:38:22 PM

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

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Exhibit 

Case 1:17-cv-00087-CRC Document 13-1 Filed 05/05/17 Page 14 of 35

From:
To:
Cc:
Subject:
Date:

Savage, Charlie
USDOJ-Office of Legal Counsel (SMO)
David McCraw; Ian MacDougall
NYT FOIA request
Tuesday, December 13, 2016 12:25:53

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

 Case Document 13-1 Filed 05/05/17 Page 15 of 35

Exhibit 

Case 1:17-cv-00087-CRC Document 13-1 Filed 05/05/17 Page 16 of 35

U.S. Department of Justice
Office of Legal Counsel

Washington, D.C. 20530
March 10, 2017
Charlie Savage
The New York Times
savage@nytimes.com

Re:

FOIA Tracking No. FYl 7-002

Dear Mr. Savage:
This letter responds to your October 28, 2016 Freedom of Information Act ("FOIA")
request to the Department of Justice, Office of Legal Counsel ("OLC"), which, as clarified by
your email of December 13, 2016, we have construed to seek all memoranda by Assistant
Attorney General Theodore Olson regarding surveillance dated in May 1984. Your request was
assigned tracking number FY17-002 and pursuant to 28 C.F.R. § 16.5(b), your request was
processed in the complex track.
A search of OLC's records has identified two responsive documents. For your
information, the National Security Division has also referred to OLC the same two documents in
response to your identical request. We are withholding these two documents pursuant to FOIA
Exemption Five, 5 U.S.C. § 552(b)(5). The documents are protected by the attorney-client
privilege and we have determined that the records are not appropriate for discretionary release.
We are also withholding portions of one of the documents pursuant to FOIA Exemptions One
and Three, 5 U.S.C. § 552(b)(l), (3). Those portions are properly classified and are also
protected by the National Security Act, 50.U.S.C. § 3024(i)(l).
For your information, Congress excluded three discrete categories of law enforcement
and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This
response is limited to those records that are subject to the requirements of the FOIA. This is a
standard notification that is given to all our requesters and should not be taken as an indication
that excluded records do, or do not, exist.
You may contact our FOIA Public Liaison, Melissa Golden, at 202-514-2053 for any
further assistance and to discuss any aspect of your request. Additionally, you may contact the
Office of Government Information Services (" OGIS") at the National Archives and Records ·
Administration to inquire about the FOIA mediation services they offer. The contact information
for OGIS is as follows: Office of Government Information Services, National Archives and
Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001,
e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at
202-741-5769.

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Although your request is the subject of ongoing litigation, and administrative appeals are
not ordinarily acted upon in such situations, I am required by statute and regulation to inform
you of your right to file an administrative appeal. You may administratively appeal by writing to
the Director, Office of Information Policy ("OIP"), United States Department of Justice, Suite
11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an
appeal through OIP's FOIAonline portal by creating an account on the following web site:
https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must be postmarked or
electronically transmitted within 90 days of the date of my response to your request. If you
submit your appeal by mail, both the le~er and the envelope should be clearly marked "Freedom
of Information Act Appeal."
Sincerely,

/-/!'~
Paul P. Colborn
Special Counsel

cc:

Julia Berman, Trial Attorney
Civil Division, Federal Programs Branch

2

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Exhibit 

Case
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION, and
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION,

13 Civ. 9198 (AT)

Plaintiffs,
v.

NATIONAL SECURITY AGENCY,
CENTRAL INTELLIGENCE AGENCY,
DEPARTMENT OF DEFENSE,
DEPARTMENT OF JUSTICE, and
DEPARTMENT OF STATE,
Defendants.

DECLARATION OF PAUL P. COLBORN
I, Paul P. Colborn, declare as follows:
1.

I am a Special Counsel in the Office of Legal Counsel (“OLC”) 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 OLC’s responses to requests it receives under the Freedom of Information Act
(“FOIA”), 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. This
declaration incorporates by reference the index of documents withheld in full or in part by OLC
attached hereto as Exhibit A.

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OLC’S RESPONSIBILITIES
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 to make policy
decisions, and in fact lacks authority to make such decisions. OLC’s legal advice and analysis
may inform the decisionmaking of Executive Branch officials on matters of policy, but OLC’s
legal advice is not itself dispositive as to any policy adopted.
3.

Although OLC publishes some opinions and makes discretionary releases of

others, OLC legal advice is generally kept confidential. One important reason OLC legal advice
often needs to stay confidential is that it is part of a larger deliberative process—a process that
itself requires confidentiality to be effective. If government agencies and OLC had to conduct
deliberations with knowledge that their deliberations were open to public view, such discussions
would naturally be chilled or inhibited, and the efficiency of government policy making would
suffer as a result.
4.

These deliberative confidentiality concerns apply with particular force to OLC

advice because of OLC’s role in the decisionmaking process: OLC is often asked to provide
advice and analysis with respect to very difficult and unsettled issues of law. Frequently, such
issues arise in connection with highly complex and sensitive activities of the Executive Branch
on matters that can be quite controversial. So that Executive Branch officials may continue to
request, receive, and rely on candid legal advice from OLC on such sensitive matters, it is
essential that OLC legal advice provided in the context of internal deliberations not be inhibited
by concerns about public disclosure.

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5.

The foregoing considerations regarding the need for confidential Executive

Branch deliberations are particularly compelling in the context of the provision of legal advice,
given the nature of the attorney-client relationship. There is a special relationship of trust
between a client and an attorney when the one seeks and the other provides independent legal
advice. When the advice is provided in confidence, it is protected from compelled disclosure.
As the Supreme Court has observed, “[t]he attorney-client privilege is the oldest of the privileges
for confidential 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). It is critical to protect this relationship of trust in the governmental
context, to ensure such full and frank communication between governmental attorneys and their
clients, and thereby promote such broader public interests in the government’s observance of law
and the administration of justice. The free and candid flow of information between agency
decisionmakers and their outside legal advisers depends on the decisionmakers’ confidence that
the advice they receive will remain confidential. Moreover, disclosure of legal advice may often
reveal confidential communications from agency clients made for the purposes of securing
advice.
6.

When requested to provide counsel on the law, OLC attorneys stand in a special

relationship of trust with their agency clients. Just as disclosure of client confidences in the
course of seeking legal advice would seriously disrupt the relationship of trust so critical when
attorneys formulate legal advice to their clients, disclosure of the advice itself would be equally
disruptive to that trust. Thus, the need to protect the relationship of trust between OLC and the

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client seeking its legal advice provides an additional reason OLC legal advice often needs to stay
confidential.
7.

The interests protected by the deliberative process and attorney-client privileges

continue to apply fully to confidential OLC legal advice in circumstances where the Executive
Branch or one of its departments or agencies elects, in the interest of transparency, to explain
publicly the Executive Branch’s understanding of the legal basis for current or contemplated
Executive Branch conduct. There is a fundamental distinction between an explanation of the
rationale and basis for a decision, which would not be privileged, and advice received prior to
making a decision, which is privileged. Thus, there is no disclosure of privileged legal advice,
and therefore no waiver of attorney-client privilege, when, as part of explaining the rationale for
its actions or policies, the Executive Branch explains its understanding of their legal basis
without reference to any confidential legal advice that Executive Branch decisionmakers may
have received before deciding to take the action or adopt the policy. Likewise, confidential
advice does not lose the protection of the deliberative process privilege simply because the
Executive Branch explains the basis or rationale for its actions or policies without referring to
that advice; rather, confidential deliberative advice loses this protection only through adoption,
i.e., if the advice is expressly adopted as part of the explanation of the rationale for the decision
or waiver, i.e., through specific voluntary disclosure of the deliberative material. If merely
explaining publicly the legal basis for Executive Branch conduct were understood to remove the
protection of the deliberative process and attorney-client privileges from the confidential legal
advice provided as part of the Executive Branch’s internal deliberations, it would substantially
harm the ability of Executive Branch decisionmakers to request, receive, and rely upon full and
frank legal advice from government lawyers as part of the decisionmaking process, and it would

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also harm the public by discouraging the Executive Branch from explaining its understanding of
the legal basis for its actions publicly in the future.
PLAINTIFFS’ FOIA REQUEST
8.

On May 29, 2013, OLC received a request dated May 13, 2013 from Alexander

Abdo on behalf of the American Civil Liberties Union Foundation (together with the American
Civil Liberties Union, hereinafter the “ACLU”), requesting records in three categories. See Ex.
B, at 1 (FOIA Request (May 13, 2013)) (hereinafter, as modified, “the ACLU Request”). Those
categories were as follows:
a.

“Any records in which the Office of Legal Counsel ("OLC") construes or

interprets the authority of the Department of Justice (‘DOJ’) or any executive agencies
under Executive Order 12,333 or any regulations issued thereunder;” Id.
b.

“Any records describing the minimization procedures used by the

government with regard to both intelligence collection and intelligence interception
conducted pursuant to EO 12,333 or any regulations issued thereunder; and” Id.
c.

“Any records describing the standards that must be satisfied for the

‘collection,’ ‘acquisition,’ or ‘interception’ of communications, as those terms are
defined in EO 12,333 or any regulations issued thereunder.”
9.

By letter dated June 25, 2013, I sent a letter to Mr. Abdo on behalf of OLC,

acknowledging receipt of the ACLU Request and proposing a narrowing agreement following an
earlier telephone conversation between Mr. Abdo and an OLC attorney. See Ex. C, at 1 (OLC
Acknowledgment (June 25, 2013)).
10.

On July 10, 2013, Mr. Abdo confirmed the narrowing agreement with certain

modifications agreed to by email. See Ex. D, at 1 (Narrowing email (July 10, 2013)). As

5

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modified and agreed to by OLC and the ACLU, the ACLU Request was narrowed to the
following:
a.

“All OLC final legal advice concerning Executive Order 12333 or its

implementing regulations with respect to electronic surveillance by the United States
Government of communications of United States persons, regardless of whether the
United States person is the target of the electronic surveillance or is in the United States
at the time of the electronic surveillance. For purposes of this request, ‘electronic
surveillance’ and ‘United States person’ have the meaning given in Executive Order
12333.” Id.
b.

“All OLC final legal advice concerning the meaning of the terms

‘collection’, ‘acquisition’, and ‘interception’ as used in Executive Order 12333 or its
implementing regulations with respect to electronic surveillance by the United States
Government of communications of United States persons. For purposes of this request,
‘electronic surveillance’ has the meaning given in Executive Order 12333.” Id.
11.

On December 30, 2013, before OLC had completed its search, ACLU filed this

lawsuit.
12.

On September 22, 2014, following a search and pursuant to the parties’ stipulated

scheduling order in this case, OLC informed Mr. Abdo that it had located ten responsive records.
See Ex. E, at 1 (OLC Response (Sept. 22, 2014)). Of the ten records, OLC enclosed three with
portions redacted and withheld seven in full. Id. Mr. Abdo was informed that the redactions and
withholdings were made pursuant to FOIA Exemptions One, Three, and/or Five, 5 U.S.C.
§ 552(b)(1), (3), (5). Id. I understand that ACLU has designated a subset of various agencies’
responsive records as still at issue in this case, and has excluded some documents located by

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other agencies, but continues to seek release of the ten documents that OLC located and withheld
in full or in part.
13.

In addition to the ten documents withheld by OLC and identified in the attached

index, two documents were withheld on behalf of OLC by the Department’s National Security
Division (“NSD”), which I understand that ACLU continues to seek as well. These documents
are identified as NSD 9 and NSD 36 in the index attached to the Declaration of John Bradford
Wiegmann, filed contemporaneously herewith.
OLC’S SEARCH
14.

I have been informed that the ACLU does not challenge the adequacy of OLC’s

search for responsive documents, and for that reason I do not describe the search here.
APPLICABLE PRIVILEGES
15.

The withheld records consist primarily of memoranda authored by OLC

containing OLC’s confidential, predecisional legal advice to assist Executive Branch clients in
making policy decisions. Accordingly, such records are covered by the deliberative process
and/or attorney-client privileges, and therefore are exempt under FOIA Exemption Five, unless
those privileges have been lost by waiver or adoption.
16.

The deliberative process privilege protects documents that are (a) predecisional,

in that they were generated prior to decisions or potential decisions; and (b) deliberative, in that
they contain, reflect, or reveal advice, discussions, proposals, and the “give and take” exchanges
that characterize the government’s deliberative processes.
17.

As discussed below, all but one of the fully or partially withheld records are

protected by the deliberative process privilege in whole or in part. They are predecisional and
deliberative, in that they consist of legal advice to Executive Branch decisionmakers. Requiring

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disclosure of these documents would undermine the deliberative processes of the government
and chill the candid and frank communications necessary for effective governmental
decisionmaking. It is essential to OLC’s mission and the deliberative processes of the Executive
Branch that OLC’s considered legal advice not be inhibited by concerns about the compelled
public disclosure of predecisional matters, including factual information necessary to develop
accurate and relevant legal advice. Protecting the withheld documents from compelled
disclosure is central to ensuring that Executive Branch attorneys will be able to examine relevant
facts and analysis, and provide candid, complete advice, and to ensuring that Executive Branch
officials will seek legal advice from OLC and the Department of Justice on sensitive matters.
18.

The attorney-client privilege protects documents that contain or reflect

confidential legal advice provided by an attorney to a client, and confidential client requests for
legal advice and other confidential communications and facts conveyed by the client to the
attorney for the purpose of receiving legal advice.
19.

As discussed below, all but one of the fully or partially withheld records are

protected by the attorney-client privilege in whole or in part. These documents consist of legal
advice that was communicated in confidence from OLC to Executive Branch clients, and
disclose confidential client requests for legal advice. In addition, many of the documents also
contain factual information that was communicated in confidence by Executive Branch clients to
OLC for the purpose of obtaining confidential legal advice, and the existence of confidential
legal advice documents reflects the privileged fact that a client requested confidential legal
advice on a particular subject. Having been asked to provide legal advice, OLC attorneys stood
in a relationship of trust with their Executive Branch clients. Just as disclosure of client
confidences provided in the course of seeking legal advice would seriously disrupt the

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relationship of trust so critical when attorneys formulate legal advice for their clients, so too
would disclosure of the legal advice itself undermine that trust.
DOCUMENTS AT ISSUE
20.

I am personally familiar with the withheld OLC documents that are at issue in this

case. An index listing the ten OLC documents at issue is attached to this declaration, as are
copies of the three redacted OLC documents that were released to the plaintiffs.
21.

OLC Advice Memoranda. Ten of the twelve documents—Documents 2-8, and 10

in the attached index as well as NSD 9 and NSD 36—are classified OLC legal advice
memoranda. These memoranda were written in response to confidential communications from
one or more executive branch clients soliciting legal advice from OLC attorneys. As with all
such OLC legal advice memoranda, these documents contain confidential client communications
for the purpose of seeking legal advice and predecisional legal advice from OLC attorneys
transmitted to executive branch clients as part of government deliberative processes. Documents
8 and 10 have been partially released in redacted form.
22.

OLC’s withholding of three of these documents from the ACLU in response to a

different FOIA request was upheld last year after in camera review by the United States District
Court for the District of Columbia in the consolidated case Elec. Privacy Info. Ctr. v. Dep’t of
Justice, Nos. 06- 096, 06-214 (RCL), 2014 WL 1279280 (D.D.C. Mar. 31, 2014) (“EPIC”); See
also Second Redacted Bradbury Declaration, ECF No. 35-1, No. 06-214 (Filed Oct. 19, 2007)
(describing these and other documents), attached hereto as Exhibit F (“Bradbury EPIC
Declaration”). Document 4 was identified in that case as OLC 132, Document 8 was identified
as OLC 131; and Document 10 was identified as OLC 54. See Bradbury EPIC Declaration
¶¶ 83(b), (g), (h). Each was among the ten opinions reviewed in camera and determined to be

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properly withheld from disclosure to the ACLU pursuant to Exemptions One, Three, and Five.
2014 WL 1279280, at *1 (“The Court is now satisfied with the Department's decisions to
withhold these ten records under Exemptions One and Three, since they are in fact properly
classified, as well as Exemption Five as each record contains confidential, pre-decisional legal
advice protected by the deliberative-process and attorney-client communications privileges.”).
23.

While the EPIC litigation was pending, there was an interagency classification

and privilege review of four of the documents at issue in that case, including the documents
identified here as Documents 4, 8, and 10, which took approximately six months and culminated
in the partial release to ACLU and the other EPIC plaintiffs of Documents 8 and 10, in redacted
form, on March 18, 2011. Following the declassification of certain information contained in
Document 10, there was another interagency review of that document, which again took
approximately six months. In September 2014, pursuant to the interagency review, NSA
informed the Department of Justice that OLC 10 contained classified and/or protected NSA
equities and therefore that NSA was withholding that material from public disclosure pursuant to
Exemptions One and Three of the FOIA. This second review culminated in a discretionary
release of a revised version of Document 10 with fewer redactions in early September 2014—six
months after the EPIC court’s in camera review and determination that the documents were
properly withheld in full or as redacted, including the portions of Document 10 that had been
redacted and withheld pursuant to Exemptions One, Three, and Five. Shortly after the
completion of this review process, the reprocessed version of Document 10 was provided to
ACLU in OLC’s September 22, 2014 response. See supra ¶ 12.
24.

In September 2015, the Government made a partial release of a classified Office

of Inspector General report regarding topics related to the subject matter of Document 10, as part

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of a FOIA response in litigation in this District. See N.Y. Times v. Dep’t of Justice, S.D.N.Y.
No. 14-cv-3776 (AT). This September 2015 release included previously undisclosed material.
Although it is possible that additional material disclosed in connection with the September 2015
release appears in portions of Document 10 redacted pursuant to Exemptions One, Three, and
Five, that material was not appropriate for discretionary release at the time of OLC’s
administrative response to the requester on September 22, 2014. In light of Document 10’s
length and the fact that it has recently been the subject of a comprehensive interagency review
for potential discretionary release, Document 10 has not been reviewed an additional time for
any potential additional discretionary release following the September 2015 release. Similarly,
pursuant to Executive Order 13526, ¶ § 3.5(d), Document 10 was not resubmitted for
classification review at the time of OLC’s administrative response to the requester on September
22, 2014 because such a review had just been concluded with material determined at that time by
the NSA to be properly classified, and has not been resubmitted for declassification review
because such a review was conducted within the past two years.
25.

Cover Memorandum. One of the documents—Document 1 in the attached

index—is a cover memorandum transmitting one of the legal advice memoranda (Document 2).
This cover memorandum contains an unclassified partial summary of Document 2, including a
description of the solicitation of advice and a summary of the memorandum’s conclusions.
26.

Court Submission. The remaining document—Document 9 in the attached

index—is a classified 2002 submission to the Foreign Intelligence Surveillance Court (“FISC”).
The submission is addressed to Judge Colleen Kollar-Kotelly, then the presiding judge of the
FISC, and signed by a senior OLC attorney. It was provided to Judge Kollar-Kotelly to read,
although not left in her possession. This is the sole document withheld by OLC only pursuant to

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Exemptions One and Three, as it is not subject to the privileges discussed above. An
unclassified attachment to this submission was released in full. I have been informed that a full
classification review of Document 9 has been completed, and that the document may now be
released to ACLU in less-redacted form. See Document 9, Letter from John Yoo to Judge
Colleen Kollar-Kotelly (May 17, 2002), attached hereto as Exhibit G.
Withholdings Pursuant to Exemption Five
27.

The ten OLC legal advice memoranda and one cover memorandum—together,

Documents 1-7, the redacted portions of Documents 8 and 10, NSD 9, and NSD 36—are
protected by the deliberative process privilege because they are confidential, pre-decisional, and
deliberative. As legal advice, these documents are (a) pre-decisional, i.e., were prepared in
advance of Executive Branch decisionmaking; and (b) deliberative, i.e., consist of advice to
Executive Branch officials in connection with that decisionmaking. Consequently, these
documents fall squarely within the protection of the deliberative process privilege. Compelled
disclosure of these documents would undermine the deliberative processes of the Government
and chill the candid and frank communications necessary for effective governmental
decisionmaking.
28.

In addition, these eleven documents withheld in full or in part contain

communications protected by the attorney-client privilege. The responsive documents (a)
contain confidential legal advice provided to OLC’s Executive Branch clients; and (b) reflect
confidential communications between OLC and Executive Branch clients made for the purpose
of seeking and providing that legal advice. These documents thus fall squarely within the
attorney-client privilege. The foregoing considerations regarding the need for confidential

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deliberations are particularly compelling in the context of the seeking of legal advice by
Executive Branch clients, and the provision of that legal advice by OLC.
Withholdings Pursuant to Exemptions One and Three
29.

In connection with seeking advice from OLC, OLC’s Executive Branch clients

sometimes provide OLC with classified information or other information specifically protected
from disclosure under FOIA by statute. OLC does not have original classification authority, but
when it receives or makes use of classified information provided to it by its clients, OLC is
required to mark and treat that information as derivatively classified to the same extent as its
clients have identified such information as classified. Accordingly, all classified information in
OLC’s possession or incorporated into its products has been classified by another agency or
component with original classifying authority.
30.

I am familiar with the documents marked classified that are at issue in this case.

As identified in the attached index, Documents 2-6 and 8-10 are marked as classified, as are
NSD 9 and NSD 36. These documents are marked as classified because they contain
information OLC received from other components or agencies that was marked as classified.
OLC has also been informed by the relevant entities that information contained in these
documents is protected from disclosure under FOIA by statute.
31.

Accordingly, OLC is also withholding these documents in part pursuant to

Exemptions One and Three. Exemption One, 5 U.S.C. § 552(b)(1), exempts documents
classified in the interest of national defense or foreign policy pursuant to an Executive Order
from disclosure under FOIA. Exemption Three, 5 U.S.C. § 552(b)(3), exempts documents
“specifically exempted from disclosure by statute” from disclosure under FOIA. The application
of these exemptions to these documents is addressed in other declarations being filed in

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connection with this motion. See Declarations of David Sherman (addressing OLC Documents
2, 3, 4, 6, 8, and 9, and NSD 36), David M. Hardy (addressing OLC Documents 5 and 6, and
NSD 9), and Antoinette B. Shiner (addressing OLC Document 5). The FBI has also asserted
Exemptions Six and Seven over portions of OLC Documents 5 and 6, as described more fully in
the Declaration of David M. Hardy.
Segregability, Adoption, and Waiver
32.

I have personally reviewed each of the responsive documents that OLC withheld

in whole or in part to determine whether any withheld portion or portions could be released
without divulging information protected by one or more of the applicable FOIA exemptions.
None of the withheld documents or redacted portions of produced documents contain reasonably
segregable, nonexempt information.
33.

To my knowledge, none of the withheld documents or redacted portions of

produced documents have ever been publicly adopted or incorporated by reference by any
policymaker as a basis for a policy decision.
34.

To my knowledge, none of the withheld documents or redacted portions of

produced documents have been previously publicly disclosed. In addition, I am not aware of any
public statements by government officials that could constitute waiver of the privileges
applicable to the withheld documents or redacted portions of produced documents
Discretionary Release
35.

None of the withheld documents or redacted portions of produced documents is

appropriate for discretionary release.

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*******
36.

In conclusion, I respectfully submit that, except for Document 9, all of the

withheld responsive documents or redacted portions of documents described herein are covered
by the deliberative process privilege and/or the attorney-client privilege. Accordingly, the
withheld documents and portions of documents fall squarely within Exemption Five. The
compelled disclosure of these documents would harm the deliberative processes of the
government and would disrupt the attorney-client relationship between OLC and its clients
throughout the Executive Branch.
I declare under penalty of perjury that the foregoing is true and correct.
Executed:

February~b, 2016, Washington, D.C.

PAULP. COLBORN

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Office of Legal Counsel (“OLC”)
Index of withheld records
ACLU et al. v. NSA et al., No. 13 Civ. 9198 (AT)
Doc.
No.

Date

To

From

Description

Exemptions

Withheld in Full
1

May 1984 The Attorney
General

2

May 1984 The Attorney
General

3

September Deputy
2001
White House
Counsel

4

October
2001

The Counsel
to the
President

5

April
2002

Counsel for
Intelligence
Policy

Theodore B.
Cover memorandum
Olson, Assistant for Document 2
Attorney
General (AAG),
OLC
Olson
Legal advice
memorandum
discussing E.O. 12333
and addressing legal
issues relating to
certain surveillance
activities
John C. Yoo,
Legal advice
Deputy
memorandum
Assistant
regarding contemplated
Attorney
intelligence activities
General
discussing, among
(DAAG), OLC other things, legal
issues pertaining to
surveillance under E.O.
12333
Yoo
Legal advice
memorandum
regarding contemplated
intelligence activities
discussing, among
other things, legal
issues pertaining to
surveillance under E.O.
12333
Yoo
Legal advice
memorandum
discussing, among
other things, legal
issues pertaining to
surveillance under E.O.
12333

1

(b)(5) deliberative
process privilege
(DP), attorneyclient privilege
(AC)
(b)(1);
(b)(3), 50 U.S.C.
§ 3024(i)(l);
(b)(5) DP, AC

(b)(l);
(b)(3), 50 U.S.C.
§ 3024(i)(l);
(b)(5) DP, AC

(b)(1);
(b)(3), 50 U.S.C.
§ 3024(i)(l);
(b)(5), DP, AC

(b)(1);
(b)(3), 50 U.S.C.
§ 3024(i)(l);
(b)(5) DP, AC;
(b)(7)(E)

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Doc.
No.
6

Date

To

From

May 2003

The Deputy
Attorney
General

Yoo

7

May 2004

The Deputy
Attorney
General and
Counsel for
Intelligence
Policy

Jack L.
Goldsmith III,
AAG, OLC

Description

Exemptions

Legal advice
memorandum
regarding contemplated
intelligence activities
discussing, among
other things, legal
issues pertaining to
surveillance under E.O.
12333
Legal advice
memorandum
discussing, among
other things, legal
issues pertaining to
surveillance under E.O.
12333

(b)(1);
(b)(3), 50 U.S.C.
§ 3024(i)(l);
(b)(5) DP, AC;
(b)(6);
(b)(7)(A);
(b)(7)(C);
(b)(7)(D);
(b)(7)(E);
(b)(5) DP, AC

Withheld in Part
8

November
2, 2001

The Attorney
General

Yoo

9

May 2002

Judge
Colleen
KollarKotelly, U.S.
District
Court for the
District of
Columbia

Yoo

10

May 6,
2004

The Attorney
General

Goldsmith

Legal advice
memorandum
discussing, among
other things, legal
issues pertaining to
surveillance under E.O.
12333
Submission to Foreign
Intelligence
Surveillance Court
discussing, among
other things, legal
issues pertaining to
surveillance under E.O.
12333 (Attachment was
released in full)
Legal advice
memorandum
discussing, among
other things, legal
issues pertaining to
surveillance under E.O.
12333

2

(b)(1);
(b)(3), 50 U.S.C.
§ 402 note, 50
U.S.C.
§ 3024(i)(l);
(b)(5) DP, AC
(b)(l);
(b)(3), 50 U.S.C.
§ 402 note, 50
U.S.C. §
3024(i)(l)

(b)(1);
(b)(3), 50 U.S.C.
§ 402 note, 50
U.S.C. §
3024(i)(1);
(b)(5) DP, AC