ACLU v. US DOJ, No. 15-2956 (2d Cir. 2016)
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The ACLU made requests under the Freedom of Information Act (FOIA), 5 U.S.C. 552, seeking information from government agencies regarding drone strikes. In this appeal, the ACLU challenges responses to the FOIA requests made to the Office of Legal Counsel (OLC) of the Department of Justice (DOJ), the CIA, and the DOD. The ACLU’s appeal challenges the district court’s ruling to the extent it upheld nondisclosure of 52 documents, and the government’s cross-appeal challenges the ruling to the extent it ordered disclosure, in whole or in part, of seven documents. The court concluded that none of the 52 withheld documents must be disclosed, and that the seven documents ordered disclosed may also be withheld. Accordingly, the court affirmed the appeal, reversed the cross-appeal, and remanded for entry of a revised judgment.
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15-2956-cv(L) American Civil Liberties Union v. United States Department of Justice UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2016 Argued: October 25, 2016 Decided: December 20, 2016 Docket Nos. 15-2956(L), 15-3122(XAP) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 - - - - - - - - - - - - - - - - - - - - - AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants-Cross-Appellees, v. UNITED STATES DEPARTMENT OF JUSTICE, including its component the Office of Legal Counsel, UNITED STATES DEPARTMENT OF DEFENSE, including its component U.S. Special Operations Command, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees-Cross-Appellants. - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, CABRANES, and POOLER, Circuit Judges. Appeal and cross-appeal from the July 23, 2015, 19 judgment of the District Court for the Southern District of 20 New 21 brought under the Freedom of Information Act. The judgment 22 granted in part and denied in part disclosure of documents 23 sought from the Office of Legal Counsel of the Department York (Colleen McMahon, now-Chief 1 Judge) in a case 1 of 2 Department of Defense concerning drone strikes. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the Central Intelligence Agency, and the Affirmed on the appeal, reversed on the cross-appeal, 3 4 Justice, and remanded for entry of a revised judgment. Brett Max Kaufman, New York, NY (Jameel Jaffer, Hina Shamsi, Matthew Spurlock, American Civil Liberties Union Foundation, New York, NY, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, MN, on the brief), for PlaintiffsAppellants-Cross-Appellees. Sarah S. Normand, Asst. U.S. Atty., New York, NY (Preet Bharara, U.S. Atty., New York, NY, Benjamin C. Mizer, Principal Deputy Asst. Atty. General, Matthew M. Collette, Sharon Swingle, Civil Division, U.S. Dep’t of Justice, Washington, DC, on the brief), for Defendants-Appellees-CrossAppellants. JON O. NEWMAN, Circuit Judge: 28 This is the third appellate round of a case brought 29 under the Freedom of Information Act (“FOIA”). The case 30 began 31 requests 32 Counsel (“OLC”) of the Department of Justice (“DOJ”), the 33 Central Intelligence Agency (“CIA”), and the Department of in February made in 2012 to October challenge 2011 2 to responses the Office to of FOIA Legal 1 Defense (“DOD”). The requests were made by the American 2 Civil 3 Foundation (collectively “ACLU”). The requests were also 4 made by The New York Times and two of its reporters, but 5 they are not parties in the pending appeal. 6 Liberties Union and the American Civil Liberties ACLU appeals and DOJ cross-appeals from the July 23, 7 2015, 8 District of New York (Colleen McMahon, now-Chief Judge). 9 That judgment ruled that OLC, CIA, and DOD were entitled to 10 withhold from disclosure a number of documents concerning 11 drone strikes -- lethal attacks by unmanned aircraft. The 12 judgment also ruled that OLC must disclose all or portions 13 of four documents1 and CIA must disclose all or portions of 14 three documents2 concerning such strikes. ACLU has narrowed 15 its request to 59 documents,3 including the seven documents 16 ordered 17 challenges the District Court’s ruling to the extent it 18 upheld nondisclosure of 52 documents, and the Government’s judgment of disclosed the in District full or Court in for part. the ACLU’s Southern appeal 1 OLC 46, 50, 144, and 145. CIA 59 tab C, 109, and 113. 3 OLC 1, 2, 8, 9, 46, 50, 64, 65, 66, 70, 71, 73, 75, 76, 83, 84, 90, 91, 95, 144, and 145; CIA 2, 3, 12, 15, 33, 34, 35, 36, 45, 59 tab C, 61, 62, 78, 94, 95, 96, 105, 106, 107, 109, 110, 111, 112, 113, 117, 118, 119, 120, 123, 124, 140, and 142; DOD 1, 31, 38, 39, 46, and 55. 2 3 1 cross-appeal challenges the ruling to the extent it ordered 2 disclosure, in whole or in part, of seven documents. 3 We conclude that none of the 52 withheld documents must 4 be 5 disclosed may also be withheld. We therefore affirm on the 6 appeal, reverse on the cross-appeal, and remand for entry 7 of a revised judgment. 8 disclosed, Litigation and that history. the Our seven first documents encounter ordered with this 9 litigation concerned consolidated appeals from the January 10 24, 2013, judgment of the District Court, dismissing on 11 motion 12 brought by The New York Times and two of its reporters and 13 another brought by ACLU. See New York Times Co. v. U.S. 14 Dep’t of Justice, 915 F. Supp. 2d 508 (S.D.N.Y. 2013), 15 modified by 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013). On 16 those 17 redacted 18 document, prepared by OLC, arguing the legal justification 19 for the drone strikes that killed Anwar al-Awlaki, Samir 20 Khan, and al-Awlaki’s son, Abdulrahman al-Awlaki. See New 21 York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 124 22 (Conclusion ¶ 1) (2d Cir. 2014) (revised opinion) (“NYTimes for summary consolidated version of judgment appeals, the two we ordered “OLC-DOD 4 consolidated suits, disclosure Memorandum,” a one of a 41-page 1 I”). All three victims were United States citizens, either 2 by 3 appeal, NYTimes I also ordered: birth or naturalization. Pertinent to the pending 4 • OLC to disclose some of the titles and descriptions 5 of documents listed on its Vaughn index,4 id. (Conclusion 6 ¶ 2); 7 • OLC to submit various legal memoranda to the District 8 Court for “in camera inspection and determination of waiver 9 of privileges and appropriate redaction,” id. (Conclusion 10 ¶ 3) (italics added); and 11 • CIA and DOD to submit Vaughn indices to the District 12 Court 13 appropriate 14 (Conclusion ¶ 5). for “in camera disclosure inspection and and appropriate determination of redaction,” id. 15 In response to the Government’s petition for rehearing 16 of NYTimes I, we made a slight revision of that opinion, 17 made slight further redactions of the OLC-DOD Memorandum, 18 and permitted the Government to withhold from disclosure 4 A Vaughn index is a list of documents, identified by number, title, and description, that a Government agency determines are responsive to an FOIA request. The index states the one or more FOIA exemptions that the agency claims justify withholding each document. The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). 5 1 the titles and descriptions of some documents listed on the 2 OLC Vaughn index, confirming a withholding authorized by an 3 order issued May 28, 2014. See New York Times Co. v. U.S. 4 Dep’t of Justice, 756 F.3d 97, 99 (2d Cir. 2014) (first 5 opinion on Government’s petition for rehearing of NYTimes 6 I). We also bifurcated for later decision the Government’s 7 request 8 additional titles and descriptions of documents listed on 9 the OLC Vaughn index. See id. at 98-99. 10 for Later, permission completing to withhold our ruling from on the disclosure Government’s 11 petition for 12 withhold from 13 additional documents listed on the OLC Vaughn index and the 14 titles of other documents listed on that index. See New 15 York Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 441 16 (2d Cir. 2014) (second opinion on Government’s petition for 17 rehearing of NYTimes I). We also ordered DOJ to make public 18 its previously classified OLC Vaughn index, as permissibly 19 redacted. 20 rehearing completely adjudicated, the 21 left with the task, as directed in NYTimes I, to consider 22 in camera whether several undisclosed OLC documents, sought See rehearing, disclosure id. With we permitted the the 6 titles the and Government to descriptions of Government’s petition for District Court was 1 in the original FOIA requests, should be disclosed. See 2 NYTimes I, 756 F.3d at 124 (Conclusion ¶ 3). 3 On remand, the District Court ruled that ten of eleven 4 OLC 5 official, could be withheld from disclosure. See No. 1:11- 6 cv-09336-CM, 7 Court 8 paragraphs from its opinion. 9 Court certified its rulings for immediate appeal under Rule 10 54(b) of the Federal Rules of Civil Procedure. See id. Dkt. 11 No. 52. 12 documents, identified Dkt. rejected No. the 52 in an (Oct. Government’s affidavit 31, 2014). request to of The an OLC District redact three See id., Dkt. No. 51. The Those rulings precipitated the second appellate round 13 of 14 documents could be withheld. See New York Times Co. v. U.S. 15 Dep’t 16 (“NYTimes II”). We also ruled that the District Court could 17 make public, except for a few words, the three paragraphs 18 of 19 undisclosed. See id. Finally, we upheld the Government’s 20 request to redact a small portion of the transcript of the 21 Government’s ex parte and in camera oral argument before 22 this Court. See id. this of its litigation. Justice, opinion We 806 the ruled F.3d 682, Government 7 that the 690-91 had ten (2d sought identified Cir. to 2015) keep 1 NYTimes II left for the District Court the laborious 2 task of examining the numerous OLC, CIA, and DOD documents 3 that the Government claimed were exempt from disclosure. 4 The Government had identified the OLC documents in its OLC 5 Vaughn index, which was originally classified. NYTimes I 6 ordered a redacted version of that index disclosed. 756 7 F.3d at 124 (Conclusion ¶ 2). The Government had identified 8 the CIA and DOD documents in its classified CIA and DOD 9 Vaughn indices. NYTimes I had ordered preparation of those 10 indices and their consideration by the District Court in 11 camera 12 redaction. Id. (Conclusion ¶ 5). for determination of appropriate disclosure and 13 Undertaking this task, the District Court examined the 14 documents listed on the OLC, CIA, and DOD Vaughn indices. 15 In a sealed unredacted draft opinion filed on May 13, 2015, 16 and superseded by a sealed unredacted final opinion filed 17 on June 23, 2015,5 the District Court required disclosure of 18 redacted versions of three OLC documents, OLC 46, OLC 144, 5 The District Court explained in its July 17, 2015, order concluding the litigation that the June 23, 2015, opinion “completely superseded” the Court’s May 13, 2015, draft opinion. The July 17, 2015, order slightly amended the June 23, 2015, unredacted opinion and also reported that a redacted version of the June 23, 2015, opinion had been filed “yesterday,” i.e., July 16, 2015. SPA 162-64. 8 1 and OLC 145; the complete text of OLC 50;6 the complete text 2 of Tab C to CIA 59; and redacted versions of CIA 109 and 3 CIA 113. See ACLU v. U.S. Dep’t of Justice, No. 12 Civ. 4 794(CM), 2015 WL 4470192, at *13-14, *23, *27, *39, *42-43, 5 *45 (S.D.N.Y. July 16, 2015) (redacted opinion). 6 In its redacted opinion, the District Court identified 7 six facts, Nos. 1-5 and 7, that it ruled (with one slight 8 qualification of No. 7 not material to this appeal) had 9 been officially acknowledged. See id. *4-5. The Court also 10 identified 11 consideration 12 officially acknowledged, see id. at *6. The District Court 13 ruled that the six acknowledged facts must be disclosed “to 14 the extent that these specific facts appear in documents on 15 the Agencies’ Vaughn Indices and can be segregated from 16 other, properly exempt information.” Id. at *5. The Court a seventh by this fact (No. Court as 6), to see id. whether at it *5, had for been 6 Both the District Court’s June 23, 2015, draft opinion and its July 16, 2015, revised opinion identified this OLC document as No. 50. See SPA 58, 59. However, the District Court’s July 17, 2015, order, recapitulating its rulings, see SPA 164, and the judgment, see SPA 166, identified the document as No. 150. The Government’s brief identified the document as No. 50. See Br. for Government at 60-62. We are satisfied that 50 is the correct number and that 150 is a typographical error. This is clear from the description of the document in the District Court’s draft and revised opinion and the fact that there is no OLC No. 150. 9 1 stated that disclosure of these six facts is “[a]pplicable 2 to 3 statement 4 does not apply to any document reviewed by the Court in 5 camera, “because the [C]ourt took those facts into account 6 when 7 exception of the seven documents ordered to be disclosed, 8 the District Court ruled that all other requested documents 9 need not be disclosed. [a]ll 10 [d]ocuments,” to make reviewing With clear the respect id. at that the document,” to the *2, six but qualified disclosure id. facts, at requirement *15. the that With District the Court 11 ordered OLC, CIA, and DOD to make a “segregability review” 12 of each document that the Court had not reviewed in camera 13 and then represent either that the six facts had not been 14 officially acknowledged, or, if so acknowledged, that the 15 facts 16 exempt from disclosure. See id. at *6-7. The Government 17 responded with classified declarations from OLC, CIA, and 18 DOD, 19 could not be made. 20 the cannot which reasonably contended District Court be that segregated segregation of information all six facts [CSA 492, 516, 544] On July 16, 2015, issued an 10 from order agreeing with the 1 agencies’ contention. See No. 1:12-cv-00794-CM, Dkt. No. 2 129 (July 16, 2015).7 3 Uncertain as to the status of three documents -- CIA 4 61, CIA 96, and DOD 1, this Court requested the Government 5 to produce them ex parte for our in camera inspection. No. 6 15-2956, Dkt. No. 166 (2d Cir. Oct. 21, 2016). We have 7 examined them. 8 The District Court’s ruling that 52 documents should be 9 withheld and that all or part of seven documents should be 10 disclosed is now fully submitted for our review. 11 Discussion 12 Although the history of this litigation is regrettably 13 complicated, disposition of the pending appeal and cross- 14 appeal 15 withholding of documents challenged on ACLU’s appeal and 16 reversal 17 challenged on the Government’s cross-appeal are warranted 18 either is fairly of because the straightforward. District disclosure In Court’s would general, disclosure reveal continued rulings information that 7 After an inquiry from this Court, see No. 15-2956, Dkt. 136 (2d Cir. Aug. 30, 2016), a response from the District Court, see No. 1:12-cv-00794-CM, Dkt. No. 142 (Oct. 20, 2016), and a further inquiry from this Court, see No. 15-2956, Dkt. No. 168 (2d Cir. Oct. 21, 2016), the District Court confirmed this conclusion, see No. 1:12-cv-00794-CM, Dkt. No. 144 (Oct. 21, 2016). 11 1 should 2 predecisional 3 Brennan Center for Justice v. U.S. Dep’t of Justice, 697 4 F.3d 5 Transportation Safety Board, 569 F.3d 964, 981-84 (9th Cir. 6 2009); Abdelfattah v. U.S. Dep’t of Homeland Security, 488 7 F.3d 178, 183-84 (3d Cir. 2007). 8 remain 184, ACLU’s secret drafts 206-07 or because protected (2d appeal. Cir. We by the FOIA 2012); documents Exemption Lahr v. 5. are See National appreciate the difficulty ACLU 9 encounters in challenging the District Court’s decision to 10 withhold from disclosure 52 documents. ACLU has not seen 11 either 12 District Court’s opinion explaining the Court’s reasons. 13 the documents or the redacted portions of the Having carefully considered each of these documents, we 14 conclude 15 decisions was correct. The documents are protected by one 16 or 17 occurred with respect to any of them. Our ruling does not 18 turn on the issue of so-called “working law,” an issue 19 contested by ACLU. more that FOIA each of the exemptions District and no Court’s waiver of withholding secrecy has 20 The seven facts. At oral argument, it became clear that 21 the issue as to the seven facts identified by the District 22 Court in its July 16, 2015 12 opinion was whether the 1 Government 2 documents because these facts were contained in them. To 3 assist in resolving that issue the District Court directed 4 the relevant agencies to make a segregability review to 5 determine if the six acknowledged facts could be segregated 6 from protected portions of the documents in which they are 7 contained. 8 that 9 segregation could not be made. We agree with that ruling. 10 the was As asserting explained agencies’ the above, submissions right the to withhold District persuasively any Court ruled showed that No further consideration of these six facts is needed. 11 With regard to the seventh fact, which the District 12 Court left for our consideration, we conclude that it is 13 unnecessary for the resolution of this appeal to determine 14 whether it has been officially acknowledged. The Government 15 did not assert the right to withhold any of the documents 16 at issue in this appeal on the ground that those documents 17 contained the seventh fact. Accordingly, even if we were to 18 conclude 19 seventh fact, we would not order disclosure of any document 20 on that basis. No further consideration of the seventh fact 21 is required. that the Government 13 publicly acknowledged the 1 Government’s cross-appeal. The seven documents ordered 2 disclosed 3 consideration. 4 by the District Court require individual OLC 46: This document, ordered disclosed in redacted 5 form, 6 meeting at which legal advice was discussed. Indicating the 7 preliminary nature of the memo, the agency staff member who 8 prepared it asked the recipients to correct anything that 9 the is an writer informal had tried memo, to attempting summarize. to The summarize document a is 10 predecisional under Exemption 5 and therefore need not be 11 disclosed. 12 OLC 50: This document is a draft of two paragraphs that 13 the document preparer suggested might be included in the 14 DOJ 15 officially 16 justification for drone strikes. See NYTimes I, 756 F.3d at 17 110. Ultimately, the two paragraphs were not included in 18 the 19 paragraphs similar to the legal advice contained in the 20 White 21 privileges had been waived by disclosure. We acknowledge 22 some similarities, but agree with the Government that the White White Paper, the disclosed, Paper. Paper and The the document, which District OLC-DOD 14 first provided Court leaked a brief considered Memorandum, and as then legal the to two which 1 document is demonstrably a draft. ACLU previously explained 2 that it is not seeking “drafts in this litigation,” and 3 stated 4 description of OLC 50 as a draft is] accurate, [then it] no 5 longer seeks th[at] document.” Reply Br. for ACLU at 17 6 n.11. 7 Exemption 5 as predecisional and no longer sought by ACLU, 8 OLC 50 need not be disclosed. that “[i]f Accordingly, the Court because OLC determines is a draft that [the protected by 9 OLC 144: This document, ordered disclosed in part, is a 10 set of suggested talking points concerning the legal basis 11 for drone strikes. We agree with the Government that the 12 document 13 Government 14 Exemption 15 legal analysis. 16 is predecisional officials 5 by do and not considering need lose not the informally how be disclosed. protection to present of a OLC 145: This is an internal outline of classified 17 facts 18 prepared in connection with the drafting of legal advice. 19 Although the District Court properly redacted portions of 20 the 21 protected as predecisional under Exemption 5. The document 22 need not be disclosed. and some document, fragmentary the discussion remainder is 15 also of legal entitled to advice, remain 1 CIA 59 tab C: This is a draft of a proposed op-ed 2 article 3 Government’s legal reasoning in support of drone strikes. 4 It was never published. Although it reveals some of the 5 unnamed 6 drone 7 predecisional. It need not be disclosed. that suggested writer’s strikes, 8 CIA 9 District 109 thinking it and Court some is CIA about a explaining justification and These in of legal draft 113: disclosed ways for that documents, part, are the for reason which the informal and 10 preliminary. The second is unsigned and undated. Despite 11 the redactions, some phrases entitled to secrecy remain. 12 Although both appear to have been written after the action 13 they comment on, they are nonetheless predecisional with 14 respect to the formulation of a policy or a clear legal 15 position. Neither document need be disclosed. 16 Conclusion 17 Chief Judge McMahon ably performed the burdensome task 18 of 19 litigation, which now appears to be concluded. Despite our 20 slight disagreement with her assessment of a few of these 21 documents, 22 explanations in her sealed opinion. examining we scores of appreciate documents her 16 in diligence this and protracted the helpful 1 On ACLU’s appeal, the judgment is affirmed; 2 Government’s cross-appeal, the judgment 3 case is remanded for entry of a revised judgment. 17 on the is reversed; the
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