ACLU v. U.S. DOJ

The ACLU brought FOIA suit against the DOJ seeking records regarding DOJ’s policy to provide notice to criminal defendants and others against whom the DOJ intended to use evidence derived from warrantless § 702 surveillance. Id. at 207. Five responsive documents were located relating to the policy, but the NSD invoked Exemption 5. Id. at 211. Because the Vaughn Index and accompanying affidavits were vague and conclusory, the Court reviewed the documents in camera. Id. at 215-16. The Court agreed with the DOJ that the documents could be withheld under Exemption 5, exempt from disclosure under the deliberative process privilege and/or attorney work product privilege. Id. at 216-17. Finally, the Court found the ACLU’s argument that these documents fall under the exception to Exemption 5 unpersuasive because the material has not been adopted or used as working law. Id. at 217-18. The Court did find, however, that the NSD improperly limited its original search for responsive documents to those “governing” rather than records “addressing or interpreting,” as drafted by the ACLU. Id. at 214. The Court ordered the DOJ to conduct a new search which comports with the actual request. Id.
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