Case 1:17-cv-04558-JPO Document 22 Filed 12/01/17 Page 1 of 15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
___________________________________________
X
THE NEW YORK TIMES COMPANY and
:
CHARLIE SAVAGE,
:
:
Plaintiffs,
:
:
- against :
:
FEDERAL BUREAU OF INVESTIGATION,
:
:
Defendant.
:
__________________________________________X

17 Civ. 4558 (JPO)

REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF PLAINTIFFS’
CROSS-MOTION FOR SUMMARY JUDGMENT

David E. McCraw, Esq.
The New York Times Company
Legal Department
620 Eighth Avenue, 18th Floor
New York, NY 10018
phone: (212) 556-4031
fax: (212) 556-4634
mccraw@nytimes.com

 

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TABLE OF CONTENTS

 
TABLE OF CONTENTS................................................................................................................. i 
TABLE OF AUTHORITIES .......................................................................................................... ii 
PRELIMINARY STATEMENT .................................................................................................... 1 
ARGUMENT .................................................................................................................................. 1 
I.  IN CAMERA REVIEW IS NECESSARY TO DETERMINE WHETHER THE FBI HAS
COMPLIED WITH FOIA ................................................................................................... 1 
II.  THE FBI HAS NOT CARRIED ITS BURDEN TO SHOW THAT EXEMPTION 7(E)
JUSTIFIES WITHHOLDING THE COMEY MEMOS IN FULL ..................................... 4 
III.  THE FBI HAS NOT CARRIED ITS BURDEN TO SHOW THAT EXEMPTION 7(A)
JUSTIFIES WITHHOLDING THE COMEY MEMOS IN FULL ..................................... 6 
CONCLUSION ............................................................................................................................. 10 

 

 

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TABLE OF AUTHORITIES
CASES
ACLU of Michigan v. FBI, 734 F.3d 460 (6th Cir. 2013) ............................................................. 10
ACLU of N. Cal. v. FBI, No. C 12-03728 SI , 2014 WL 4629110 (N.D. Cal. Sept. 16, 2014) ...... 3
ACLU v. U.S. Dep’t of Justice, No. 12 CIV. 7412 WHP, 2014 WL 956303 (S.D.N.Y. Mar. 11,
2014) ........................................................................................................................................... 7
Albuquerque Pub. Co. v. U.S. Dep’t of Justice, 726 F. Supp. 851 (D.D.C. 1989) ......................... 5
Center for National Security Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) ..... 8
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir.
2014) ........................................................................................................................................... 3
Doherty v. U.S. Dep’t of Justice, 775 F.2d 49 (2d Cir. 1985) ........................................................ 4
Florez v. CIA, 829 F.3d 178 (2d Cir. 2016), ................................................................................... 9
Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) ................................................................................. 8
Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81 (2d Cir. 1991) .................................. 3
Johnson v. FBI, 118 F. Supp. 3d 784 (E.D. Pa. 2015) .................................................................... 3
Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146 (D.D.C. 2004).............. 5, 6
Lamont v.U.S. Dep’t of Justice, 475 F. Supp. 761 (S.D.N.Y.1979) ............................................... 5
Larson v. U.S. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) ........................................................ 8
Lazaridis v. U.S. Dep’t of State, 934 F. Supp. 2d 21 (D.D.C. 2013) .......................................... 3, 7
Murphy v. FBI, 490 F. Supp. 1138 (D.D.C. 1980) ....................................................................... 10
New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014)................................... 4
Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803 (9th Cir. 1995) ..................................................... 5
Schwartz v. U.S. Drug Enf’t Admin., No. 13CV5004CBARML, 2016 WL 154089 (E.D.N.Y. Jan.
12, 2016) ..................................................................................................................................... 6
Sciacca v. FBI, 23 F. Supp. 3d 17 (D.D.C. 2014)........................................................................... 3
 

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Swan v. SEC, 96 F.3d 498 (D.C. Cir. 1996) ................................................................................... 7
Unidad Latina En Accion v. U.S. Dep’t of Homeland Sec., 253 F.R.D. 44 (D. Conn. 2008) ........ 6
Wilner v. Nat’l Sec. Agency, 592 F.3d 60 (2d Cir. 2009) ............................................................... 8
 
STATUTES
5 U.S.C. § 552 ........................................................................................................................ passim

 

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PRELIMINARY STATEMENT
Plaintiffs The New York Times Company and Charlie Savage (collectively, “The
Times”) respectfully submit this reply memorandum of law in further support of their crossmotion for summary judgment on their complaint brought under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. The Federal Bureau of Investigation (“FBI”) once again has failed to
adequately explain why the memoranda written by its former director, James Comey (the
“Memos”), must be withheld in light of the substantial amount of information the public now
knows about both the Memos and the Special Counsel investigation. The FBI asks the court to
ignore information in the public domain that is relevant to the fundamental question of whether
there are actually secrets to protect in order to prevent interference with the investigation. It also
urges the Court to adopt a new and expanded Exemption 7(E) rule that finds little support in the
case law.
ARGUMENT
I.
IN CAMERA REVIEW IS NECESSARY TO DETERMINE
WHETHER THE FBI HAS COMPLIED WITH FOIA
The FBI has both withheld the Comey Memos and submitted a secret declaration to
explain its withholding. It now bizarrely criticizes The Times for not proving that the
information in the Memos is already public. (See The Federal Bureau of Investigation’s
Memorandum of Law in Opposition to Plaintiffs’ Cross-Motion for Summary Judgment and in
Further Support of Its Motion for Summary Judgment (“FBI Reply”), at 14-15 (criticizing The
Times for “speculation” and for failing to “point[] to any evidence” of what is in the Memos).)
The absurdity of this argument bears little explanation. The Times will stipulate that it has no
way of knowing which parts of the Memos overlap with the Special Counsel’s filings or Mr.

 

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Comey’s public statements, whether they actually contain classified information, or how easy or
hard it would be to segregate non-exempt material. Every FOIA plaintiff works in the dark.
But the FBI is simply wrong to say that The Times is relying on “rank speculation” about
the content of the Memos. (See id. at 14.) We have Mr. Comey’s own statements describing the
documents he wrote. (See Declaration of David McCraw, dated Nov. 3, 2017 (“McCraw Decl.,
Ex. 7, Comey Written Statement, at 2 (“Creating written records immediately after one-on-one
conversations with Mr. Trump was my practice from that point forward.”); id. at 3 (“As I wrote
in the memo I created immediately after the dinner, it is possible we understood the phrase
‘honest loyalty’ differently.”); McCraw Decl., Ex. 8, Comey Testimony Excerpts, at 2 (“I created
records after conversations, and I think I did it after each of our nine conversations. If I didn’t, I
did it for nearly all of them.”); id. at 8 (referring to multiple unclassified Memos).)
We also know that the investigation into Russian interference in the 2016 presidential
campaign was a particular concern for the President in his conversations with Mr. Comey.
(McCraw Decl., Ex. 7, Comey Written Statement, at 6 (“[The President] described the Russia
investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country.”).) And
we now have significant official public disclosures about that investigation as a result of the
Special Counsel’s filing of indictments and acceptance of a guilty plea from a Trump campaign
aide. (Id., Exs. 12-15.)
Rather than seriously address whether those disclosures officially waive the right to keep
confidential any part of the Memos, or how the release of any part of the Memos could actually
interfere with an investigation that has now become public, the FBI builds its public case on
broad conclusory statements with little attempt to provide any factual support. It simply declares
that the now-public information does not “substantially overlap[]” with what is in the Memos.

 

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(FBI Reply at 15.) It makes similarly generic statements about segregability, interference, and
classification. (Id. at 14, 17-19.) That is not sufficient, as the FBI well knows.1
Moreover, the Special Counsel charged Michael T. Flynn last night with lying to federal
investigators. See United States of America v. Michael T. Flynn, 17 Cr. 232, Information, Dkt.
No. 1 (D.D.C. Nov. 30, 2017); id., Statement of the Offense, Dkt. No. 4 (D.D.C. Dec. 1. 2017).
Mr. Flynn pled guilty today. Id., Plea Agreement, Dkt. No. 3. These charges alter the legal and
factual landscape once again. We know that the Comey Memos describe the President’s intense
focus on the investigation of Mr. Flynn’s Russian contacts. (McCraw Decl., Ex. 7, Comey
Written Statement, at 5 (“I immediately prepared an unclassified memo of the conversation about
Flynn.”).) To the extent that the Special Counsel documents relating to the charges against Mr.
Flynn overlap with the information contained in the Comey Memos, any right to withhold this
information has been waived. See Lazaridis v. U.S. Dep’t of State, 934 F. Supp. 2d 21, 35
(D.D.C. 2013).
This is a case where the Court’s in camera review is important. There are deep public
concerns about whether the President interfered with an investigation of his own campaign and
administration, yet the FBI seeks to keep the public in the dark on the basis of “trust me”
conclusory declarations and a secret declaration. See Hopkins v. U.S. Dep’t of Hous. & Urban
1

See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1098 (D.C. Cir.
2014) (finding Hardy declaration inadequate in 7(A) case given, among other things, “the vague nature of
the DOJ’s mention of ongoing investigations”); Johnson v. FBI, 118 F. Supp. 3d 784, 798 (E.D. Pa. 2015)
(rejecting Hardy declaration because it is comprised of “vague, general, and patently conclusory language
that gives the Court no sense of which documents or categories of documents were withheld under
Exemption 5, and whether or not the material in those documents actually falls within the scope of
Exemption 5”); ACLU of N. Cal. v. FBI, No. C 12-03728 SI, 2014 WL 4629110, at *8 n.5 (N.D. Cal.
Sept. 16, 2014) (finding Hardy declaration pertaining to Exemptions 6 and 7 “contains largely the same
general statements and conclusions that were in its prior declaration, which the Court found insufficient”);
Sciacca v. FBI, 23 F. Supp. 3d 17, 28-29 (D.D.C. 2014) (rejecting Hardy declaration as “conclusory”
even though it “is lengthy, and provides a reasonably detailed description of the various types of
exemptions that Defendants maintain are applicable”).

 

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Dev., 929 F.2d 81, 85-86 (2d Cir. 1991) (remanding for in camera review of records for
segregability of facts from deliberative material in the face of a conclusory agency declaration).
In camera review assures the public that the Court has used its independent authority to make
certain that the executive branch is not misusing its power to prevent public access.
II.
THE FBI HAS NOT CARRIED ITS BURDEN
TO SHOW THAT EXEMPTION 7(E) JUSTIFIES
WITHHOLDING THE COMEY MEMOS IN FULL
The Times’s Exemption 7(E) argument is straightforward: To the extent that law
enforcement techniques or procedures used in the Russia investigation have been revealed to the
public—by Mr. Comey in his written or spoken testimony before Congress, by Special Counsel
Mueller in his charging documents, or by some other source—this information is no longer
protected under Exemption 7(E). See New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100,
114 (2d Cir. 2014) (“Voluntary disclosures of all or part of a document may waive an otherwise
valid FOIA exemption.”) (internal quotations omitted); Doherty v. United States Dep’t of Justice,
775 F.2d 49, 52 n.4 (2d Cir. 1985) (Exemption 7(E) protects “investigative techniques not
generally known to the public.”).
The Government tries to muddy the waters by arguing that it may withhold any law
enforcement technique or procedure used in the Russian interference investigation, no matter
how routine. (See FBI Reply at 16-18.) This argument fails for two reasons. First, to the extent
Mr. Comey and Special Counsel Mueller have already publicly revealed the use of specific law
enforcement techniques and procedures, this information is now known to the public and must be
disclosed. See New York Times Co., 756 F.3d at 114; Doherty, 775 F.2d at 52 n.4.
Second, this argument mischaracterizes the applicable law. The Government argues that
“[i]t is self-evident that public disclosure” of any law enforcement technique or procedure used
 

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in a specific pending investigation “could interfere with that investigation” by allowing targets to
develop countermeasures, compromise evidence, or interfere with witnesses and their testimony.
(FBI Reply at 16.) Not only is the claim not self-evident, but it flatly contradicts controlling law.2
As a general rule, Exemption 7(E) does not apply to routine techniques or procedures
known to the public. See Lamont v. Dep’t of Justice, 475 F. Supp. 761, 780 & n.79
(S.D.N.Y.1979) (“Congress did not intend that Exemption 7(E) apply to routine techniques or
procedures which are generally known outside the Government.”) (internal quotations omitted).
The Government may withhold “commonly known” procedures only where it has shown that
such disclosure “could reduce or nullify their effectiveness.” Judicial Watch, Inc. v. U.S. Dep’t of
Commerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004) (internal quotations omitted).
What the law enforcement exemption does not allow is the withholding of every record
that describes the use of law enforcement techniques in connection with a specific investigation,
no matter how routine. See Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995).
As the Rosenfeld court said, “If we were to follow such reasoning, the government could
withhold information under Exemption 7(E) under any circumstances, no matter how obvious
the investigative practice at issue, simply by saying that the ‘investigative technique’ at issue is
not the practice but the application of the practice to the particular facts underlying that FOIA
request.” Id.
The courts have wisely limited the exception to instances in which details about the use
of a well-known technique or procedure would clearly nullify its effect. See, e.g., Albuquerque
2

The Government also advances the puzzling argument that The Times “has effectively conceded that the
information in the Comey Memos that is covered by Exemption 7(E) is also properly withheld under
Exemption 7(A).” (FBI Reply at 16.) It offers no pincite, so it is unclear where this supposed concession
occurred. Regardless, the proposition is wrong. It is not the case that disclosure of every law enforcement
technique or procedure used by the Special Counsel, no matter how routine, “could reasonably be
expected to interfere with enforcement proceedings,” as required by Exemption 7(A). 5 U.S.C. § 552.

 

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Pub. Co. v. U.S. Dep’t of Justice, 726 F. Supp. 851, 857-58 (D.D.C. 1989) (holding that widely
known techniques like wiretapping and using informants are not secret under FOIA); Schwartz v.
United States Drug Enf’t Admin., No. 13CV5004CBARML, 2016 WL 154089, at *10 (E.D.N.Y.
Jan. 12, 2016) (“[O]nly previously unknown ‘techniques or procedures’ are exempt. Previously
unknown circumstances are not.”).
The Government attempts to create a new rule here that would permit the Government to
withhold all routine techniques or procedures so long as they are utilized in an ongoing
investigation. (See FBI Reply at 17 & n.2.) That is the not the law, and the Government cites no
precedent for it. The touchstone for Exemption 7(E) remains whether disclosure would nullify
the effectiveness of a technique or procedure, Judicial Watch, 337 F. Supp. 2d at 181, not
whether an investigation is open or closed. The Government has not met that standard in its
public filings, and in camera review is appropriate for that reason as well. See Unidad Latina En
Accion v. U.S. Dep’t of Homeland Sec., 253 F.R.D. 44, 52 (D. Conn. 2008) (conducting in
camera review to determine whether Exemption 7(E) was properly applied).
III.
THE FBI HAS NOT CARRIED ITS BURDEN
TO SHOW THAT EXEMPTION 7(A) JUSTIFIES
WITHHOLDING THE COMEY MEMOS IN FULL
The Government devotes no less than half of its brief to demonstrating that Mr. Comey’s
testimony did not serve as a waiver of Exemption 7(A). The Government misses the point. The
Times does not argue—either here or in its opening brief—that Exemption 7(A) has been waived
by Mr. Comey’s statements.3 Rather, they argue that Exemption 7(A) was not properly applied in

3

By way of contrast, The Times does assert the Special Counsel’s disclosures are official
acknowledgements and waive FOIA exemptions. (Memorandum of Law in Opposition to Defendant’s
Motion for Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Summary Judgment at 23.)

 

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the first instance. The Government attacks a straw man.
An agency waives its right to an exemption when it officially and publicly acknowledges
the information being withheld. See Lazaridis, 934 F. Supp. 2d at 35. This point of law is not
disputed. Rather, The Times advances the distinct argument that Exemption 7(A) is not properly
applied in the first instance because the public release of those portions of the Comey Memos
that overlap with what has been previously disclosed could not “reasonably be expected to
interfere with enforcement proceedings.” See 5 U.S.C. § 552(b).
The FBI observes that the cases The Times cites in its opening brief “concern the scope
of Exemption 7(E) in the first instance, and do not address whether the protections otherwise
afforded under Exemption 7 have been waived through official disclosure.” (FBI Reply at 8.)
Precisely so. The Exemption 7(E) case law clearly shows that when law enforcement techniques
and procedures become publicly known—regardless of where that information originated—
Exemption 7(E) no longer applies. See, e.g., ACLU v. U.S. Dep’t of Justice, No. 12 CIV. 7412
WHP, 2014 WL 956303, at *7 (S.D.N.Y. Mar. 11, 2014). This is because Exemption 7(E) is
about protecting secret law enforcement techniques and procedures, and once these techniques
and procedures become publicly known, there is no longer a secret to protect.
The Times contends that a similar rule applies to Exemption 7(A), which, like Exemption
7(E), is concerned with the practical effects of disclosure—specifically, whether a disclosure is
likely to cause interference with an investigation or prosecution. Put simply, Exemption 7(A)
turns on the continued need for secrecy. As the D.C. Circuit noted in Swan v. SEC, “When
records requested under FOIA contain only information already known to someone under
government investigation, the government will often be unable to establish that exemption 7(A)
applies,” because “[i]f the target of the investigation—the one who might use the information to

 

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intimidate witnesses, destroy evidence, and so forth—already has the information, public access
to it is unlikely to interfere with law enforcement proceedings.” 96 F.3d 498, 500 (D.C. Cir.
1996).
Once the irrelevant arguments about waiver are put aside, the FBI raises just two
arguments for why the Memos are properly withheld in full under Exemption 7(A). First, the FBI
argues that the Court must simply accept as true its assertion that the release of any portion of the
Comey Memos would interfere with the Special Counsel’s Russia investigation. (See FBI Reply
at 10.) But of course this is not what FOIA requires. It does not mandate unquestioning
acceptance by the courts of an agency’s claim. See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68
(2d Cir. 2009). Even in national security cases, the Second Circuit has said the courts “must
analyze” the declarations. Halpern v. FBI, 181 F.3d 279, 285 (2d Cir. 1999). In Halpern, the
court did not blindly accept what the Government had to say: “Although the author of one of the
declarations wrote much, she said little; and she said nothing in particular that would justify
withholding the documents the requester sought.” Id. Here, too, the law requires that the agency
provide a logical and plausible explanation for why the information must be withheld. Larson v.
Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009). The FBI has not done that.
Second, the FBI suggests that the Court is not even to consider unofficial disclosures in
assessing whether Exemption 7(A) applies. (FBI Reply at 7-11.) The FBI cites a string of cases
purportedly holding that an agency’s disclosure of records could interfere with an investigation
even though some portion of the information was already public.4 (See id.) Indisputably, there
4

The FBI mischaracterizes many of the cases it cites. In Center for National Security Studies v. U.S.
DOJ, 331 F.3d 918 (D.C. Cir. 2003), for example, the case did not turn on whether information known to
the public would interfere with a law enforcement investigation if disclosed by DOJ, as the Government
claims. (See FBI Reply at 9-10.). It turned on whether the requested information was publicly known at
all. Center for Nat’l Sec. Studies, 331 F.3d at 928, 930-31 (reasoning that while the names of “a few”

 

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are times when further disclosure of already public information will likely cause interference,
especially when the public information may have come from disputed or unconfirmed sources.
But that is not a per se rule and a court is not barred from considering what is publicly known.
The Times makes a simple point: In evaluating whether the likelihood of interference has been
shown, the Court should take into account what is already public—and therefore known to
potential targets and witnesses—and assess the plausibility of the Government’s claim.
The FBI’s cited cases actually lend support to The Times’s position. The Government
notes that “courts have found that even officially acknowledged facts do not lose the protection
of Exemption 7 where the harm that an exemption is designed to prevent is still implicated.”
(FBI Reply at 5.) In other words, the Exemption 7(A) harm analysis is untethered from whether
the source of the already-public information is official or unofficial. The relevant inquiry is the
plausibility of the Government’s asserted harm, regardless of where the information originated.
The Second Circuit’s decision in Florez v. Central Intelligence Agency, 829 F.3d 178 (2d
Cir. 2016), is instructive. The court reasoned that “categorically excluding public documents as
evidence” when reviewing an agency’s FOIA response “flies in the face of our own instruction”
that when evaluating an agency’s FOIA reply, the court “should attempt to create as complete a
public record as is possible.” Id. at 187 (internal quotations omitted). When assessing the validity
of a government’s FOIA response, the court is not required “to deliberately bury its head in the
sand to relevant and contradictory record evidence.” Id.
Here the Government needs to make a logical and plausible showing that despite Mr.
Comey’s very public testimony about the Memos and the Special Counsel’s public filings, the
detainees may already be known to terrorist organizations, “a complete list” of detainees would reveal
new information—for example, that a member of a terrorist organization was “detained briefly and then
released, but remains subject to continuing government surveillance” or that a non-member was detained
as a material witness).

 

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disclosure of the Memos themselves “could reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b). This is not a case, for example, involving disclosures by leakers
or rogue employees. (See, e.g., FBI Reply at 7 (citing Murphy v. FBI, 490 F. Supp. 1138, 114243 (D.D.C. 1980).) In those cases, targets and witnesses seeing the information may
understandably have doubts about the credibility and authenticity of the information. Here, in
contrast, the former head of the investigation was testifying before Congress. Investigative targets
or witnesses could not dismiss his statements as speculative or unfounded. Moreover, the Special
Counsel has confirmed that Mr. Comey’s Memos are being used in its investigation. (See First Hardy
Decl. ¶ 13.) Nor, based on what is publicly known, is there reason to think that the Memos will

disclose new information about the nature, scope, or focus of the Government’s investigation.
(See, e.g., FBI Reply at 9 (citing ACLU of Michigan v. FBI, 734 F.3d 460, 466-67 (6th Cir.
2013).) To believe that is to believe that Mr. Comey was providing a deeply detailed briefing to a
President he did not trust about the FBI’s investigation into his own administration and
campaign.
In short, some or all of the harm that disclosures about the Memos pose has already
occurred, and the Government has not provided a basis for believing that any further harm could
result from revealing the Memos themselves.
CONCLUSION
For the reasons above and in our moving brief, Plaintiffs respectfully request that their
motion be granted.

 

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Dated: New York, NY
December 1, 2017
Respectfully submitted,
By: /s/ David E. McCraw
David E. McCraw, Esq.
The New York Times Company
Legal Department
620 Eighth Avenue, 18th Floor
New York, NY 10018
phone: (212) 556-4031
fax: (212) 556-4634
e-mail: mccraw@nytimes.com
Attorneys for Plaintiffs

 

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