17‐3399‐cv Am. Civil Liberties Union v. Nat’l Sec. Agency In the United States Court of Appeals for the Second Circuit AUGUST TERM 2018 No. 17‐3399‐cv AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs‐Appellants, v. NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF STATE, Defendants‐Appellees. On Appeal from the United States District Court for the Southern District of New York ARGUED: DECEMBER 4, 2018 DECIDED: MAY 30, 2019 Before: CABRANES, LIVINGSTON, Circuit Judges, and SCHOFIELD, District Judge.* Plaintiffs‐Appellants, the American Civil Liberties Union and the American Civil Liberties Union Foundation (jointly, “the ACLU”), requested documents concerning the legal authority for certain national security programs from Defendants‐Appellees, several federal agencies (jointly, “the Government”). After exhausting administrative remedies, the ACLU filed suit under the Freedom of Information Act (“FOIA”), requesting that the District Court compel disclosure. To defend the decision to withhold several documents, the Government invoked specific statutory exemptions, including FOIA Exemption 5, which protects from disclosure attorney‐client and deliberative communications. The District Court (Kimba M. Wood, Judge) granted summary judgment in the Government’s favor, holding that the agencies properly withheld the documents under FOIA. On appeal, the ACLU argues that Exemption 5 does not apply because the Government adopted or incorporated the disputed documents when it “relied on” the legal advice contained therein. We conclude that under Exemption 5, an agency (1) “adopts” a previously privileged document where the agency’s statements or behavior indicate that the agency treats the document as binding authority, and (2) “incorporates” a previously privileged document “by reference” Judge Lorna G. Schofield, of the United States District Court for the * Southern District of New York, sitting by designation. 2 where a formal agency opinion or decision explicitly relies on that document and its reasoning. We find no such adoption or incorporation to have occurred in this case. Accordingly, we affirm the judgment of the District Court. _______ ASHLEY GORSKI (Patrick Toomey, American Civil Liberties Union Foundation, New York, NY; Hannah Bloch‐Wehba, David Schulz, Sebastian Brady, Diana Lee, Paulina Perlin, Media Freedom and Information Access Clinic, Abrams Institute, Yale Law School, New Haven, CT, on the brief), American Civil Liberties Union Foundation, New York, NY, for Plaintiffs‐Appellants. JEAN‐DAVID BARNEA (David S. Jones and Benjamin H. Torrance, Assistant United States Attorneys, on the brief), Assistant United States Attorney, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Defendants‐Appellees. ________ 3 JOSÉ A. CABRANES, Circuit Judge: The American people have the right to know the laws and policies that bind our government and its agencies. At the same time, government officials must be able to receive confidential legal advice and deliberate frankly. Sometimes, these principles appear contradictory. We can, however, accommodate both by carefully defining the boundary between law, on the one hand, and advice, on the other. Put simply, law binds. Accordingly, when inquiring whether a document constitutes an agency’s “effective law and policy” or ...
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