ACLU V NSA.pdf

The American Civil Liberties Union (ACLU) requested documents from several federal agencies regarding the legal authority for certain national security programs. The agencies withheld the documents under the Freedom of Information Act (FOIA) Exemption 5, which protects attorney-client and deliberative communications. The ACLU argued that Exemption 5 does not apply because the government adopted or incorporated the disputed documents when it relied on the legal advice contained therein. The court concluded that an agency "adopts" a previously privileged document when it treats the document as binding authority, and "incorporates" a document "by reference" when a formal agency opinion or decision explicitly relies on the document and its reasoning. The court found no such adoption or incorporation occurred in this case and affirmed the judgment of the District Court.