ACLU v. FBI, No. 11-7562, 2014 WL 4979251 (S.D.N.Y. Oct. 6, 2014) (Pauley III, J.)

ACLU v. FBI, No. 11-7562, 2014 WL 4979251 (S.D.N.Y. Oct. 6, 2014) (Pauley III, J.)

Re: Request for records concerning government's use of section 215 of USA PATRIOT Act

Disposition: Granting defendant's motion for summary judgment in part; denying plaintiff's motion for summary judgment in part

• Litigation Considerations, In Camera Inspection:  The court holds that "because this Court has little faith in the Government's segregability determinations, [certain] documents in the Government's Vaughn index must be submitted for in camera review."  The court explains that multiple "inconsistencies shake this Court's confidence in the Government's submissions."
   
• Exemptions 1 & 3:  The court finds that "it is clear from the affidavits alone that the Government is entitled to provide a Glomar response with respect to documents relating solely to the bulk collection of information other than telephony metadata, whether the Government intended to give such a response or not."  "[I]t is appropriate to invoke Glomar here, to preserve the secrecy of the existence or non-existence of a covert intelligence program."  The court relates that "the Government asserts that the fact of whether the Government is engaging in the bulk collection of information other than telephony metadata is itself exempt from disclosure under Exemptions 1 and 3."  Here, defendant relies for Exemption 3 purposes on "§ 102A(i)(l) of the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 (codified at 50 U.S.C. § 3024(i)(1))."

Additionally, the court holds that "[d]espite the searching inquiry this Court will give the Government's segregability determinations, the Government's affidavits are entitled to deference on whether disclosure of certain information would harm national security."  "The reasons for this Court's skepticism about the Government's segregability determinations are not a basis to second guess its national security assessments."