District Court Decisions

ACLU v. DOD, No. 04 Civ. 4151, 2011 U.S. Dist. LEXIS 115171 (S.D.N.Y. Oct. 5, 2011) (Hellerstein, J.).  Holding:  Denying plaintiffs' motion to hold the CIA in civil contempt.  The court denies plaintiffs' motion for civil contempt, concluding that such a finding "at this point would serve no beneficial purpose."  The court finds that "[t]he CIA's failure to identify or produce the videotapes in response to plaintiffs' FOIA request and [the court's] repeated orders, and the destruction of the videotapes, has been remedied."  The court further notes that although the requested videotapes have been destroyed, "the CIA has remedied that failure by a massive production of . . . records [that] describe the contents of the videotapes, corresponding in time to their creation, and records that relate to the videotapes' destruction, in particular, the persons and reasons behind the destruction, corresponding in time to both the videotapes' creation and destruction."  Moreover, the court observes that "[p]laintiffs have had a full and fair opportunity to litigate whether those records, or any of them, are exempt from disclosure under FOIA Exemption 1or 3 or must be produced" and further notes that its rulings on those points are currently on appeal.   Additionally, the court finds that "[t]he public gains an additional benefit from the remedial relief put in place by the CIA – improved protocols for the retention of records potentially relevant to an investigation or a judicial, congressional, or administrative proceeding."  And, "contrary to plaintiff's view, [the court opines that] the CIA's new protocols would have a remedial and deterrent effect should a CIA official think to destroy documents."  However, the court notes that the parties agree that it "ha[s] the inherent authority to impose an award of attorneys' fees and costs, as a matter of fairness and equity, without finding the CIA in contempt," and finds that "[t]he parties should endeavor to settle between them the amounts that fairly are due."