## Facts

- Advocacy organizations submitted FOIA requests to federal agencies seeking records concerning post-September 11 detainee treatment, detainee deaths in U.S. custody, and renditions to countries known to use torture or unlawful interrogation.
- Agencies produced some records but withheld others under FOIA exemptions tied to classification and statutory secrecy for intelligence information.
- In related FOIA litigation, the district court ordered the government either to replace classified redactions in two OLC memoranda with unclassified substitute language or to disclose the redacted material.
- The district court also upheld the government’s withholding of certain CIA-related records under Exemption 3, including documents describing the contents of 92 interrogation videotapes that had been destroyed and a photograph of Abu Zubaydah.
- The government appealed the substitute-language/disclosure order; the requesters cross-appealed the Exemption 3 ruling sustaining the CIA-related withholdings.

## Issues

1. Whether classified redactions in two OLC memoranda were properly withheld under FOIA Exemptions 1 and/or 3.
2. Whether a court may order an agency to craft unclassified “substitute language” for properly exempt classified information rather than simply sustaining the withholding.
3. Whether records concerning the contents of destroyed interrogation videotapes and related materials were properly withheld under FOIA Exemption 3 based on intelligence-protection statutes.

## Decision

- The court reversed the district court order requiring substitute language or full disclosure for the redactions in the two OLC memoranda.
- The court held the government adequately justified the redactions under FOIA Exemptions 1 and 3 through detailed, good-faith national security declarations and submissions.
- The court affirmed the district court’s ruling sustaining Exemption 3 withholdings for documents related to the destroyed interrogation videotapes and related materials, including the Abu Zubaydah photograph.
- Overall, the court sustained the government’s invocation of national security classification and statutory intelligence-protection bases for nondisclosure.

## Legal Principles

- In Exemption 1 cases involving national security, courts give substantial deference to agency affidavits when they are reasonably specific, show a logical fit between the withheld information and the exemption, and are not undermined by contrary evidence or bad faith.
- Exemption 3 applies when a qualifying statute requires nondisclosure of a defined category of information; once the statute and fit are shown, courts may not order disclosure based on policy balancing.
- Courts reviewing FOIA withholdings may require indexing, in camera review, or more detailed declarations, but FOIA does not authorize courts to compel agencies to rewrite or re-draft classified material into unclassified “substitute” narrative.
- Statutes protecting intelligence sources and methods and CIA organization/functions fall within Exemption 3 and can bar disclosure of interrogation-related information even when the subject matter has public controversy.

## Conclusion

The Second Circuit held that the government properly withheld detainee- and interrogation-related information under FOIA Exemptions 1 and 3 and that a district court lacks authority to compel unclassified substitute language for exempt classified redactions, affirming broad deference to Executive national security judgments where supported by detailed, good-faith declarations.


Am. Civil Liberties Union v. Dep’t of Just., 681 F.3d 61 (2d Cir. 2012)