The New York Times Company v. United States, No. 13-422 (2d Cir. 2014)

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This opinion or order relates to an opinion or order originally issued on April 21, 2014.

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13-422-cv (L) The New York Times Company v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2013 Submitted: June 5, 2014 Decided: August 11, 2014 Docket Nos. 13-422(L), 13-445(Con) - - - - - - - - - - - - - - - - - - - - - - THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, CABRANES, and POOLER, Circuit Judges. 1 Supplemental opinion on petition for rehearing. 2 With respect to the supplemental request for additional 3 redactions from the required disclosure of titles and/or 4 descriptions of some items listed in the Vaughn index, request 5 granted 6 rehearing again denied. 7 8 9 in part and denied in part; petition for panel Sharon Swingle, Atty., Appellate Staff, Civil Division, U.S. Dept. of Justice, Washington, 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 D.C.; Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, N.Y., Stuart F. Delery, Asst. U.S. Atty. General, Beth S. Brinkman, Deputy Asst. U.S. Atty. General, Douglas N. Letter, and Matthew M. Collette, Attys., Appellate Staff, Civil Division, U.S. Dept. of Justice, Washington, D.C., on the petition, for Defendants-Appellees. No opposition papers requested. JON O. NEWMAN, Circuit Judge: 20 After we ruled on the Government s motion for panel 21 rehearing in this needlessly protracted FOIA litigation (the 22 Plaintiffs FOIA requests were made four years ago), the 23 Government moved for leave to file ex parte and in camera two 24 submissions ( July 28 submissions ) in support of its petition 25 for 26 Classified and Privileged Supplemental Declarations in Support 27 of 28 (hereinafter July 23 Motion ). On July 25, 2014, Chief Judge 29 Katzmann, treating the request as a one-judge procedural 30 motion, granted the motion, and the two new submissions were 31 filed ex parte and in camera on July 28, 2014. rehearing Petition in for banc. See Rehearing Motion En 2 Banc, to Submit filed July Ex 23, Parte 2014 Because it is 1 the practice of this Court, prior to the convening of an in 2 banc 3 considered by the relevant panel prior to circulation to the 4 active judges of the Court, the July 28 submissions have been 5 made available to the panel, which has elected to treat them 6 as a tardy supplemental request in support of the Government s 7 June 5, 2014, petition for panel rehearing. 8 filing of this supplemental opinion on the petition for panel 9 rehearing, the July 28 submissions and this opinion will be 10 circulated to the active judges (they have already received 11 the Government s petition for rehearing in banc and this 12 panel s prior opinions). 13 court, to have all in banc submissions initially Following the Background 14 Assessment of the requests in the July 28 submissions for 15 further redactions from the Vaughn index in addition to those 16 authorized by the panel s July 10, 2014, opinion, which 17 denied, with several exceptions, rehearing on the bifurcated 18 Vaughn index issues, requires a brief summary of the pertinent 19 steps taken in this Court. 20 On April 15, 2013, The New York Times plaintiffs, in 21 their opening appellate brief, specifically included in their 22 request for relief that we should direct DOJ to provide a 3 1 Vaughn index as to any additional documents [beyond the OLC- 2 DOD Memorandum] that were subject to the Glomar responses, 3 Br. for NYTimes at 51 (emphasis added), a request repeated in 4 the June 28, 2013, reply brief at 24. 5 2014, petition for rehearing, the Government acknowledged that 6 the Plaintiffs had argued that the government should prepare 7 and produce a public Vaughn index. Pet. for Reh g at 12 8 (emphasis added). 9 made it clear that they wanted a Vaughn index from DOJ.1 Indeed, in its June 5, Thus, more than a year ago, the Plaintiffs The 10 Government s claim that the panel ordered release of a Vaughn 11 index sua sponte, see July 23 Motion at 1, is incorrect. 12 On June 14, 2013, the Government in its brief referred in 13 a footnote to the Vaughn index submitted by the Office of 14 Legal Counsel as an attachment to a responsive e-mail. Br. 15 for Appellees at 25 n.8. 16 use of DOJ s no number, no list response (rather than a Vaughn 17 index). The brief defended the Government s 18 On February 10, 2014, after oral argument, the panel 19 provided to the Government ex parte and in camera its proposed 20 opinion to afford an opportunity to advise whether any 1 Although the Plaintiffs did not request the specific Vaughn index that OLC had prepared, of which the Plaintiffs were unaware, their request for a Vaughn index was clear. 4 1 classified information, not intended to be disclosed by this 2 opinion, has been inadvertently disclosed. See The New York 3 Times Co. v. U.S. Dep t of Justice, 752 F.3d 123, 144 n.23 (2d 4 Cir. 2014). 5 OLC s Vaughn index, but redacted a number of listings. See id. 6 at 143-44. That proposed opinion required disclosure of 7 On March 13, 2014, the Government responded to that 8 opportunity by submitting a motion ex parte and in camera, 9 which requested redaction of just four listings in the Vaughn 10 index (nos. 252-54, 268), three of which we had already 11 indicated would be redacted. 12 On March 17, 2014, we provided the Government ex parte 13 and in camera a revised version of the panel s proposed 14 opinion, which still required disclosure of OLC s Vaughn 15 index, subject to the four additional redactions. 16 On March 28, 2014, the Government responded ex parte and 17 in camera with a request that certain portions of the revised 18 proposed opinion quoting public statements of senior officials 19 either be redacted or moved to a different location in the 20 opinion in order to preserve the Government s opportunity for 21 further appellate review. 22 proposed opinion made no request to redact any additional 23 listings in the Vaughn index. This response to the revised 5 1 On April 21, 2014, the panel filed public and sealed 2 versions of its opinion. See The New York Times Co. v. U.S. 3 Dep t 4 version). The statements identified in the Government s March 5 28, 2014, submission were transferred from the public version 6 to the sealed version. of Justice, 752 F.3d 123 (2d Cir. 2014) (public 7 On May 28, 2014, we filed an order that, among other 8 things, reiterated the first three redactions from the Vaughn 9 index that were sought in the Government s March 13, 2014, 10 submission, and agreed to the fourth one. See The New York 11 Times Co. v. U.S. Dep t of Justice, Order at 5 (May 28, 2014). 12 No other redactions had been requested in the Government s 13 March 13, 2014, submission. On June 5, 2014, the Government filed its petition for 14 15 panel and in banc rehearing. The petition identified three 16 groups of listings in the OLC s Vaughn index that it contended 17 should be redacted and asserted that other listings, not 18 identified by number, should also be redacted. See Petition at 19 14. 20 On June 9, 2014, the Court submitted to the Government ex 21 parte and in camera a proposed panel opinion on the petition 22 for rehearing, and on June 10, 2014, the panel issued an order 6 1 that (1) noted that the proposed opinion would bifurcate the 2 Vaughn index issues for later adjudication, and (2) directed 3 the Government to notify the Court by June 20, 2014, of any 4 objection set forth with specificity to the filing of the 5 proposed opinion. See The New York Times Co. v. U.S. Dep t of 6 Justice, 7 Government submitted ex parte and in camera a response to the 8 Court s 9 redactions 10 Order at 2 (June 10, 2010). June 10, from 2014, the order. OLC-DOD On June 20, 2014, the That response Memorandum, requested which were subsequently made. On June 23, 2014, the panel filed an opinion partially 11 12 denying rehearing. 13 of Justice, 2014 WL 2854878 (June 23, 2014). That opinion 14 bifurcated all 15 additionally requested redactions from the OLC-DOD Memorandum, 16 and deferred adjudication of the Vaughn index issues. See id. 17 at *1-*2. 18 version of its April 21, 2014, opinion. See The New York Times 19 Co. v. U.S. Dep t of Justice, 2014 WL 2838861 (2d Cir. June 20 23, 2014). Vaughn index issues, made of the On June 23, 2014, the panel also filed a revised On July 10, 2014, the panel filed an opinion adjudicating 21 22 the See The New York Times Co. v. U.S. Dep t the Vaughn index issues and 7 denying the petition for 1 rehearing, with the exception that the panel further revised 2 its June 23, 2014, opinion to redact many of the titles and 3 descriptions for which the Government had sought exemption in 4 its petition for rehearing. See The New York Times Co. v. U.S. 5 Dep t of Justice, 2014 WL 3396075 (July 10, 2014). 6 This was the state of affairs when on July 25, 2014, the 7 Government filed the July 23 Motion, seeking leave to file the 8 July 28 submissions. 9 listings in the Vaughn index (nos. 7, 8, 75, 113, 12-22, 132, 10 136, 138, and 139), for which redaction had not previously 11 been sought, be redacted; sought redaction of one listing (no. 12 108), which had not been ordered disclosed; and renewed the 13 Government s request to redact 26 listings (nos. 58-61, 63-65, 14 71, 73, 74, 76, 77, 83, 89-91, 95, 96, 98, 99, 102, 108, and 15 129), which we had not redacted. The submissions included two 16 affidavits 17 renewed 18 contended that the Court had not provide[] the government the 19 opportunity to redact classified or privileged entries from 20 the 21 surprising claim in view of the Government s opportunity to 22 see, prior to filing, the Court s original proposed opinion from senior officials In July claims. Vaughn Those submissions requested that eleven index, the see July 23 8 supporting 23 Motion, Motion at the the 3, new and Government a somewhat 1 and the revised proposed opinion, both of which ordered 2 partial disclosure of Vaughn index titles and descriptions. Discussion 3 4 Before considering the specific new and renewed requests, 5 we encounter the Government s general contention that the 6 OLC s Vaughn index was of a type never intended to be made 7 public. 8 are two types of Vaughn indices. 9 distinguish the Vaughn index submitted in this case, which was 10 classified, from a Vaughn index that the Government says it 11 would 12 Government asserts, was prepared with a view toward providing 13 the district court with a robust understanding of the nature 14 and range of issues implicated by the pending FOIA matter 15 before it. . . . Affidavit of John E. Bies, Deputy Asst. 16 Atty. Gen., OLC, at 2, ¶ 2. 17 protect[] privileged 18 Executive Branch 19 records. Id. at 3, ¶ 5. The Government advances the new argument that there have prepared for The July 28 submissions disclosure. The former, the The latter would appropriately attorney-client deliberations in communications describing and withheld 20 Although we appreciate the Government s objective of 21 giving the District Court a robust understanding of the 22 issues, we would expect such a presentation to be made in 9 1 supporting briefs and affidavits. 2 classical Vaughn indices, see Keys v. U.S. Dep t of Justice, 3 830 F.2d 337, 349 (D.C. Cir. 1987), which simply list titles 4 and descriptions of withheld documents, we have located no 5 FOIA decision mentioning two types of such indices one to 6 assist a district court and another for public release and 7 the Government has called none to our attention. 8 therefore 9 disclosure rulings on the Vaughn index that OLC has already 10 prepared, with such redactions as may be appropriate. See 11 Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C. 12 Cir. 1979) (noting that some items in a Vaughn index are 13 appropriately withheld from disclosure). continue, as we have With respect to so-called thus far, to We will base our 14 Furthermore, we emphasize that we are ordering disclosure 15 only of the titles and descriptions of the several documents 16 we identify by number.2 17 afford a FOIA plaintiff an opportunity to decide which of the 18 listed documents it wants and to determine whether it believes 19 it has a basis to defeat the Government s claim of a FOIA 20 exemption. See Keys, 830 F.2d at 349. Titles and descriptions The purpose of a Vaughn index is to 2 The titles and description must, of course, be keyed to the number of the listing, together with the one or more FOIA exemptions asserted by the Government. 10 1 serve that purpose. Thus, the Government s current request to 2 redact the names of the sender and/or recipient of some of the 3 listed documents (nos. 75, 113, 116, and 136) as identified in 4 the To and From columns of the Vaughn index is moot; no 5 disclosures of the names of persons have been required. 6 disclosures of any entries in the Date(s), To, or From 7 columns have been required. No 8 Coming at last to the Government s specific requests for 9 redaction, in light of the new submissions, we will make the 10 following additional redactions: in listings 7, 95, 116, and 11 117, the identity of the sending agency may be redacted from 12 the descriptions of these four listings; in listings 8, 58, 13 59, 60, 61, 62, 63, 64, 65, 71, 73, 76, 77, 83, 89-91, 95, 96, 14 98, 99, 102, 117, 120, 123, and 132, the titles, but not the 15 descriptions, may be redacted. 16 listings reveal no information at all. 17 to redact the titles and descriptions of listings 74, 129, 18 136, 138, and 139, which either reveal no information or are 19 blank.3 20 21 The descriptions of these We deny the requests To recapitulate, as a result of the new redactions set forth in this opinion, we require disclosure only of 3 By blank we do not mean redacted; the entry under the Title/Subject column is blank. 11 1 (1) the titles and descriptions of listings 5, 7 (except 2 for the identity of the sending agency in the description), 9, 3 50, 74, 75, 110, 113, 116 (except for the identity of the 4 sending agency in the description), 117 (except for the 5 identity of the sending agency in the title and description), 6 121, 122, 129, 131, 133-243, 269, and 270, and 7 (2) the descriptions of listings 57, 58-61, 62, 63, 64, 8 65, 66, 68, 69, 70, 71, 73, 76, 77, 78, 79, 80, 81, 82, 83, 9 87, 88, 89-91, 92, 93, 95 (except for the identity of the 10 sending agency in the description), 96, 97, 98, 99, 100, 102, 11 103, 104, 118, 120, 123-28, 130, and 132.4 12 disclosure of the date or the name of any person or agency 13 that sent or received a listed document. 14 repeatedly pointed out, we require no disclosure of the 15 content of any listed document. We require no Finally, as we have 16 Supplemental request for additional redactions from the 17 Vaughn index granted in part and denied in part; petition for 18 panel rehearing again denied. 4 To whatever extent the summary of required disclosures in this opinion is inconsistent with the summary in our July 10, 2014, opinion, see The New York Times Co. v. U.S. Dep t of Justice, 2014 WL 3396075 (2d Cir. July 10, 2014) *4 n.12, the summary in this opinion will govern. 12