N.Y. Times v. DOJ, No. 22-1539, 2023 WL 4407480 (S.D.N.Y. July 7, 2023) (Rakoff, J.)

N.Y. Times v. DOJ, No. 22-1539, 2023 WL 4407480 (S.D.N.Y. July 7, 2023) (Rakoff, J.)

Re:  Request for records concerning use of spyware and other digital surveillance products from Israeli technology company, including its flagship product “Pegasus,” which is used to surveil encrypted communications on smartphones

Disposition:  Granting in part defendant’s motion for summary judgment; granting in part plaintiff’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Exemption 7(E):  First, regarding “FBI form FD-1057s – a form of electronic communication apparently similar to an inter-agency memorandum –  regarding three meetings by FBI and/or DOJ staff on October 28, 2020 to discuss the potential use of the [Israeli technology company] product to support criminal investigations,” the court holds that “[t]hese documents are in effect internal agency memos summarizing discussions among FBI and DOJ staff regarding whether and how to deploy the [Israeli technology company] technology.”  “Portions withheld under the deliberative process privilege consist of 'specific considerations that FBI components or DOJ offices or components believed were relevant to the evaluation of whether to proceed with the tool (and if so, how),’ as well as ‘specific problems that non-decisionmakers identified with particular approaches’ and ‘proposed specific next steps in the decision-making process.’”  “These contents are plainly both ‘pre-decisional’ and ‘deliberative,’ in that they predate and summarize a piece of the process by which the FBI’s final decision was made.”  “The Government has also withheld portions of Group A pursuant to Exemption 7(E) that would reveal ‘specific operational needs identified by the FBI, which would in turn would reveal what techniques or procedures FBI had available – and lacked – for gaining lawful access to encrypted information.’”  “[T]he Court declines to order further production or to conduct an in camera review with respect to the documents in Group A and grants the Government’s motion for summary judgment with respect to these documents.”
  
  Regarding “a single document consisting of two emails,” the court first notes that “[a]lthough [plaintiff] briefly speculates that the document may contain segregable factual information, the Court sees no reason to believe that this is so and credits the Government’s representation that ‘the substantive factual information contained in the document is inextricably intertwined with the deliberative material.’”  “That leaves the Government’s withholding pursuant to Exemption 7(E), as to which the Government contends that disclosure would ‘reveal what techniques or procedures FBI had available – and lacked – for gaining lawful access to encrypted information,’ as well as ‘specific details about FBI’s assessment of the tool.’”  “The 2019 email discussed ‘testing and evaluating the [Israeli technology company] tool for potential use in criminal investigations,’ including by ‘identif[ying] problems that would have to be solved before the tool could be used’ and ‘discuss[ing] unresolved questions about the use of such a tool in criminal investigations . . . .’”  “The Government convincingly explains that disclosing discussions such as these about how to test and evaluate technologies for gaining access to encrypted information could reveal information about the FBI’s actual and expected capabilities, which could help ‘allow hostile actors to exploit potential weaknesses in the FBI's ability to assess similar software.’”
  
  Regarding “documents [that] reflect detailed accounts of options the FBI was considering for how to use the [Israeli technology company] technology before it decided not to,” the court finds that “[s]ince the [Israeli technology company] tool was not used, it seems plain that the plans for using it reflected in these documents – which were never put in place – were part of the Government’s internal deliberative process for considering how and whether to use the [Israeli technology company] tool.”  “And [the associated Vaughn Index entry], which includes a ‘pro-con’ list regarding ‘multiple potential options for gaining’ access to encrypted information, including the [Israeli technology company] tool, plainly consists of internal predecisional deliberations (although the Court recognizes it is not dated).”  “The Government also withholds all of [these records] under Exemption 7(E), arguing that disclosure would reveal ‘specific operational needs identified by FBI, which would reveal what techniques or procedures FBI had available, and lacked, for gaining lawful access to encrypted information’ as well as ‘specific details about [the] FBI’s assessment of the tool.’”  “The Government further represents that ‘[one document] . . . contains especially detailed analysis based on the FBI’s assessment,’ and that these records ‘would also reveal FBI analysis of other approaches to gaining lawful access to encrypted information where the FBI’s use or lack of use of these other approaches has not been officially disclosed.’”  “The Court believes the Government has established that this kind of disclosure could be reasonably expected to increase the risk of circumvention of law . . . .”
  
  Regarding “20 chains of emails dating from July 20-22, 2021 that ‘include primarily (1)internal discussions planning for meetings to discuss how to proceed regarding the [Israeli technology company] tool; and (2) distribution of a notice . . . to cease all efforts on use of the [Israeli technology company] tool,’” the court relates that “[u]nder Exemption 5, the Government withholds portions that either predate the 7/22/21 cease-efforts decision, or immediately follow it and recount prior deliberations.”  “The withheld portions include ‘discussions regarding whether the [Israeli technology company] tool would be appropriate for potential use in criminal investigations, and the circumstances in which it could be lawfully used for that purpose, as well as post-decisional discussions reflecting the same predecisional deliberations.’”  “[Plaintiff] argues that it is implausible to think the post-decision emails contain sufficient descriptions of predecisional deliberations to justify the Government’s withholdings.”  “But the Court does not see why; it is more than plausible and in fact likely that employees might respond in the immediate aftermath of a decision not to use a technology they thought might be used with questions and descriptions of their understanding of the pre-decisional status of deliberations.”  “And that is exactly what the Government represents happened here.”  “The Court therefore concludes that the Government has met its burden to show that withholding of Group M pursuant to Exemption 5 was appropriate.”  “The Government further withheld portions of these emails under Exemption 7(E), in part because disclosure might reveal code names.”  “The Court understands that [plaintiff] does not contest withholding on this basis.”  “In addition, the Government withheld portions under Exemption 7(E) that contain the FBI’s assessment as to whether ‘the [Israeli technology company] tool would, or would not, be effective,’ which ‘could shed light on the FBI's assessment of other software or potential use of such software in the future.’”  “Certain of the withheld portions also discuss the ‘FBI’s existing capabilities and limitations in gaining lawful access to encrypted communications in law enforcement investigations . . . .’”  The court finds that “the fact that [plaintiff] may believe from prior comments by Government officials or other disclosures that it knows something about the FBI’s capabilities in this regard hardly makes the full extent of those capabilities a matter of public record, and the Government here represents that the withheld information concerning FBI’s capabilities covers ‘very recent, very specific details about what types of encrypted information the FBI could, and could not, access using its existing capabilities’ – details that ‘[h]ostile actors’ could use in order to avoid law enforcement access.”  “The Court sees no basis to disregard the FBI’s descriptions of this information as sensitive (and plainly subject to Exemption 7(E)) just because some former government officials’ comments, previous disclosures, or press reports have purported to describe FBI’s capabilities in this area.”  “[Plaintiff’s] other argument with respect to the Exemption 7(E) withholdings from Group M is that it is ‘speculative and illogical that disclosure could reveal something about FBI’s assessment or potential use of other software in the future.’”  “But the Court does not see why.”  “For one thing, how the FBI assesses the efficacy of technologies such as the [Israeli technology company] technology is itself arguably a ‘technique[ ] or procedure[ ] for law enforcement investigations or prosecutions,’ the disclosure of which ‘could reasonably be expected to risk circumvention of the law.’”  “For another, to the extent disclosure would reveal the FBI’s assessment of the [Israeli technology company] tool’s efficacy – and, relatedly, the capabilities and gaps in the FBI’s toolset for getting at encrypted information – that would also disclose information protected by Exemption 7(E).”
  
  Regarding “a May 11, 2021 internal document ‘providing background on the [Israeli technology company] tool and proposing guidelines for potential use of the [Israeli technology company] tool in criminal investigations,’ which the Government has withheld in full pursuant to Exemptions 5 and 7(E),” the court relates that “[t]he Government contends that it ‘reflects proposals about how the [Israeli technology company] tool might be used, including specific details about the most appropriate use.’”  “The discussion further ‘references specific criminal matters then under investigation . . . for which the authors believed the [Israeli technology company] tool might be appropriate.’”  “With respect to Exemption 7(E), the Government represents that disclosure would reveal ‘specific details about [the] FBI’s assessment of the tool,’ revelation of which could ‘risk circumvention of the law by identifying specific areas of weakness in the government’s ability to assess and acquire information about the tool, which hostile individuals or entities could use to exploit the FBI's weaknesses.’”  “The Court finds it difficult to credit the Government’s representation that all of this document reflects predecisional deliberations, given its description in the revised Vaughn Index as ‘providing background on the [Israeli technology company] tool.’”  “Since such background might be extricable from deliberations and proposals regarding prospective use, the Court would be inclined to order further disclosure or at least conduct in camera review were Exemption 5 the sole basis for withholding.”  “However, the document is also fully withheld under Exemption 7(E) . . . .”
  
  Regarding “a May 11, 2021 briefing document created for the FBI Director’s daily brief, containing ‘assessment and evaluation of the [Israeli technology company] tool for potential use in support of criminal investigations,’” and “an email with the Deputy Director’s feedback on the briefing material,” the court finds that “[t]hese records (dated 5/11/21) predate the cease efforts decision, and plainly involve predecisional ‘evaluations’ and assessments, as well as feedback on such evaluations, that do not ‘embody or reflect any final decisions.’”  “The briefing material and subsequent email also identify ‘specific operational needs identified by FBI, [disclosure of which] which would reveal what techniques or procedures FBI had available – and lacked – for gaining lawful access to encrypted information.’”  “The Court has little trouble concluding these documents were properly withheld under both Exemptions 5 and 7(E).”
  
  Regarding “‘a single email chain between [the Operational Technology Division] and [the Criminal Investigative Division],’” the court finds that “[t]he document ‘does not relate directly to FBI’s consideration of whether to deploy the [Israeli technology company] tool in support of criminal investigations’ and ‘[i]nstead . . . relates to questions from FBI personnel stationed abroad about potential counterintelligence or operational risks posed by [the Israeli technology company tool] or other software.’”  “Portions of this document are withheld under Exemption 7(A), which allows withholding of information that ‘could reasonably be expected to interfere with enforcement proceedings.’”  “The Court understands from the parties that [plaintiff] no longer disputes withholding under this exemption.”  “The Court agrees with [plaintiff] that, as to portions of this document not withheld under 7(A), withholding under Exemptions 5 and 7(E) is inappropriate.”  “The Government has conceded that the document ‘does not relate directly to [the] FBI’s consideration of whether to deploy the [Israeli technology company] tool in support of criminal investigations,’ so – even to the extent the document may contain[,] as the Government represents[,] ‘individual FBI employees’ views and recommendations about how to evaluate potential risks to FBI personnel from [the Israeli technology company] Group software,’ . . .  – these views and recommendations do not appear to [have] play[ed] any deliberative role in the formulation of any actual policy.”  “Meanwhile, as to Exemption 7(E), given the Government’s concession that the email chain does not concern the FBI’s prospective use of the ‘[Israeli technology company] tool in support of criminal investigations,’ the Court does not see how disclosure of the email ‘would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions . . . . .’”
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, “Reasonably Segregable” Requirements:  Regarding “five PowerPoint presentations that the FBI has withheld in full concerning potential uses of the [Israeli technology company] technology that were created prior to the FBI’s final decision to not use that technology,” the court notes that “[plaintiff] does not appear to dispute that these presentations were prepared prior to the FBI’s decision not to use the [Israeli technology company] technology and that they reflect pre-decisional proposals about how the technology might be used – proposals, in other words, that plainly fall within the heart of Exemption 5.”  “According to the FBI, these predecisional presentations ‘reveal the specific considerations that FBI or DOJ offices or components believed were relevant to whether to proceed with the tool (and if so, how); identify specific problems that non-decisionmakers identified with particular approaches, including enumerating several risks and advantages of proceeding with the [Israeli technology company] tool; and contain recommendations, including proposed specific next steps in the decision-making process,’ and ‘individual FBI employees used these records to make recommendations and proposals, and communicated them internally, to help the FBI make decisions about whether (and if so, how) to proceed with use of the [Israeli technology company] tool in support of criminal investigations.’”  The court also finds that “the FBI has reasonably explained that the facts in the presentations in question are inextricably tied up with the subjective assessments of FBI or DOJ personnel and components not reflected in the FBI’s ultimate decision, such that it is not possible to disclose discrete isolated facts.”  “Of course, as [plaintiff] points out, this Court could verify that each fact in the relevant Powerpoint presentations is in fact not plausibly segregable form deliberative material by reviewing the slides in camera and determining for itself as to every piece of the withheld documents whether some underlying ‘fact’ could be disclosed without likewise making disclosures about the agency’s predecisional deliberations.”  “But the possibility of in camera review exists in every case, as does the possibility that a court that undertakes such review could conceivably find pieces of a withheld document that it believes could be disclosed.”  Given a reasonable showing by the Government that the withheld material is in fact subject to withholding under Exemption 5 – a proposition of which the Court is here convinced, and which [plaintiff] does not appear to even dispute as to at least very significant portions of the withheld material – conducting further in camera review to verify assertions by the Government this Court has been given no reason to doubt is not required nor a productive use of either this Court’s or the parties’ time.”  “The Court therefore concludes that the bulk of [these records] were properly withheld under Exemption 5 . . . with one exception.”  “One of the documents . . . – . . . described as an ‘Email from [the Office of Technology Division] dated July 22, 2021 with SharePoint proposal of [Israeli technology company] product’ – contains both one of the PowerPoint presentations discussed above and a cover-email that appears to post-date the FBI’s decision to not employ the [Israeli technology company] technology.”  “That email itself is plainly not pre-decisional.”
   
• Exemption 5, Deliberative Process Privilege:  Regarding “a reply to [an] email by an FBI employee that ‘include[d] detailed background on the FBI’s analysis and consideration of the [Israeli technology company] tool; a review of one particular component's work regarding the . . . tool; and a summary of FBI-created predecisional documentation about the . . . tool,” the court relates that “[w]hile this email post-dates the Government’s decision to not use the . . . tool, the FBI represents that it ‘recounts and summarizes the FBI’s deliberations, including the views and recommendations of particular components, which were different from the FBI’s final decision not to proceed.’”  The court finds that “[t]he portions of the withheld email that [plaintiff] contends are ‘factual’ are, quite literally, descriptions of the FBI's deliberative process, including how the FBI went about setting up its internal testing and approval process.”  “Such descriptions are likely intimately intertwined with the ‘views and recommendations of particular [FBI] components,’ . . . and, even if that were not the case, it would make little sense to conclude that FOIA’s deliberative process privilege does not extend to a detailed description of the agency’s decisionmaking process.”  “As such, the Court concludes that the Government’s withholding pursuant to Exemption 5 was appropriate.”
  
  Regarding “a single email chain” which “predate[s] the July 2021 decision not to deploy the [Israeli technology company] technology” and “contain[s] ‘recommendations of specific components and individuals regarding whether to proceed with using the tool, and plans regarding how to proceed,’ and also contain information regarding ‘the specific decision-making process, including by revealing necessary intermediate approvals that predated the ultimate decision not to employ the tool,’” “[t]he Court agrees with the Government that the portions of the emails containing ‘recommendations of specific components and individuals’ are plainly covered by Exemption 5.”  “Further, with respect to any actual ‘intermediate approvals’ by particular individuals or offices that were made prior to the ultimate decision not to proceed, the Court agrees that those approvals would fall under Exemption 5.”  “However, the Court does not see how descriptions of ‘the specific decision-making process’ – as opposed to the views actually expressed during that process – is covered by Exemption 5.”  “Accordingly, no later than 14 days following the date of this order, the Government should reprocess this entry and produce any portions of it describing ‘the specific decision-making process,’ to the extent those can be segregated from intermediate decisions actually made by intermediate decisionmakers.”  “To the extent the Government concludes no such portions can be segregated, the Government should submit this email to the Court for in camera review.”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations; Exemption 7(E):  Regarding “various emails with two attachments:  draft and final versions of letters from the FBI to Israel’s Defense Export Control Agency,” the court relates that “[plaintiff] does not appear to dispute that these emails are both predecisional and deliberative and are therefore facially subject to Exemption 5.”  “Instead, [plaintiff] contends that the Government has failed to show that disclosure of these emails would cause foreseeable harm to an interest protected by Exemption 5 . . . .”  “The Court disagrees.”  “It takes little imagination to see why ‘reveal[ing] the personal views of some FBI staff rather than the ultimate policy determination of FBI about the form and content of the final letter’ threatens to cause foreseeable harm in the context of proposed communications with a foreign government – where it is of course essential that the Government speak with one unified voice and that, when doing so, it have already benefited from a full airing of points of view among staff.”  “Disclosure might both undermine the Government’s official presentation of its views to a foreign government – to the extent that Government might perceive internal disagreement within the Government, and perhaps even come to see individual employees as potential friends or foes – and dissuade governmental employees from fully articulating different points of view before a final decision is made.”  “Accordingly, the Court concludes that the portions of emails withheld in [this group of records] pursuant to Exemption 5 were properly withheld.”  “The Government has also withheld portions of these emails pursuant to FOIA Exemption 7(E), contending that ‘disclosure would reveal . . . the specifics of FBI programs, technology capabilities (and means for acquisition of technology), and relationships with foreign partners[, and] . . . specific code names that [the] FBI used for certain FBI programs’ and that disclosure of these things ‘would risk circumvention of the law by revealing FBI processes and potential issues related to relationships with foreign countries.’”  “[Plaintiff] does not challenge the withholding of ‘code names,’ . . . but does challenge the other 7(E) withholdings.”  The court finds that “[i]n the context of communications with a foreign power, [the] Court affords the Government’s assessment of the harms likely to be caused by disclosure particular weight.”  “Nevertheless, even in this sensitive area, an agency must offer ‘sufficient information to evaluate whether those judgments are logical and plausible.’”  “And, except with respect to the Government’s unchallenged withholding of code names, the Government fails to give any information showing why or how information in the letter to Israel about the [Israeli technology company] technology would reveal anything about law enforcement techniques or investigations, nor does it explain why ‘potential issues related to relationships with foreign countries’ qualifies for withholding under Exemption 7(E).”  “Accordingly, [plaintiff’s] motion is granted with respect to those documents in [this group of records] withheld under Exemption 7(E) except as concerns code names.”
   
• Exemption 5, Deliberative Process Privilege; Exemption 1; Exemption 3:  The court considers “two email chains: one largely internal to [the] FBI regarding how to respond to an inquiry by another Executive Branch entity (the identity of which was disclosed to the Court in a classified ex parte declaration) concerning the [Israeli technology company] tool, including emails on the Top Secret Email system, and second, classified email chains between the other Executive Branch entity, the FBI, and other Department of Justice offices containing questions and follow-up concerning that other entity’s inquiry.”  The court relates that “[t]he Government withheld these emails under Exemptions 5 (both with respect to the deliberative process privilege, and, with respect to certain emails, the attorney-client privilege), 7(E), and, with respect to classified information in the emails, Exemptions 1 and 3.”  “The Court understands that [plaintiff] does not challenge any withholdings pursuant to attorney client privilege.”  “With respect to the other withholdings, [the court finds that] the Government convincingly explains that the withheld emails – although dated from October 2021, following the cease-efforts decision – are nonetheless predecisional because the[y] predate and concern the Attorney General’s response to the other Executive Branch entity’s inquiry.”  “And they appear plainly deliberative, ‘contain[ing] candid and unvarnished advice and commentary by subordinates that do not represent the policy of the agency’ regarding how the FBI and Attorney General should respond to the inquiry by the other Executive Branch entity.”  Additionally, “the Court concludes on the basis of both the publicly filed information in [defendant’s] declaration, and the ex parte classified declaration submitted to the Court that the underlying questions as well as the identity of the Executive Branch component asking them were appropriately withheld under Exemptions 1 and 3.”

• Exemption 7(E):  The court considers “two email chains:  one dated July 20-21, 2021, and the second dated July 20-22, 2021.”  The court finds that “[t]he withheld portions all predate the 7/22/21 cease-efforts decision.”  “And they contain individuals’ and offices’ ‘recommendations . . . whether to proceed with using’ the [Israeli technology company] technology, ‘discussions and evaluations of the circumstances in which it could be used in support of criminal investigations,’ and ‘plans regarding how to proceed.’”  “Such discussions are plainly subject to the deliberative process privilege.”  “The Government also represents that disclosure of these emails – which, as discussed above, contain ‘discussions and evaluations of the circumstances in which [the . . . technology] could be used in support of criminal investigations’ – would reveal ‘specific operational needs identified by FBI’ and ‘techniques or procedures [the] FBI had available – and lacked – for gaining lawful access to encrypted information.’”  “The Court therefore agrees that disclosure would ‘risk circumvention of the law by identifying specific areas of weakness in the government’s ability to gain lawful access, and in the government’s ability to assess and acquire information about the tool,’ and is therefore subject to Exemption 7(E).”

• Exemption 1 & Exemption 3:  The court relates that “[plaintiff] . . . disputes the Government’s withholding of certain contract documents with the [Israeli technology company] group under Exemptions 1 and 3, arguing that the contract likely deals with ‘pricing, payment terms, and such routine legal matters as dispute resolution mechanisms, indemnifications, and representations and warranties,’ rather than properly classified material or material implicating national security.”  “But, following this Court’s review of the ex parte classified declaration submitted to it, it concludes that disclosure of these documents would necessarily entail more than [plaintiff] conjectures, and that the Government has more than met its burden to show these documents are subject to withholding.”

• Litigation Considerations, Adequacy of Search:  The court relates that “[plaintiff] finally contends that the Government’' search was inadequate because it failed to use the term ‘Phantom’ (an [Israeli technology company] product) as a search term.”  “However, following review of . . . the Government’s ex parte classified declaration, the Court agrees with the Government that use of the term ‘Phantom’ would not likely yield any additional records beyond those returned by the search terms ‘Pegasus’ and ‘[the Israeli technology company] Group.’”