New York Times Co. v. United States Department of Justice

13-422-cv
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: July 10, 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.
On Petition for Rehearing.
With respect to bifurcated issues concerning Vaughn index
issues, Petition DENIED, except that Court’s Revised Opinion,
filed June 23, 2014, is further revised to exclude from
disclosure the titles and descriptions of listings 67, 105,
118, 119, 250, 262-65, and 271, and the titles of listings 57,
62, 66, 68, 69, 70, 78, 79, 80, 88, 92, 93, 97, 98, 100, 103,
104, 108, 123-28, and 130, and to delete listings 244, 246,
1
248, and 256 from page 62, lines 9-10, and the case is
REMANDED.
Sharon Swingle, Atty., Appellate
Staff, Civil Division, U.S.
Dept. of Justice, Washington,
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 were
requested.
JON O. NEWMAN, Circuit Judge:
This opinion adjudicates issues presented by the
Government’s petition to rehear our decision in The New York
Times v. United States Department of Justice, Nos. 13-422(L),
13-455(Con), 2014 WL 1569514 (2d Cir. Apr. 21, 2014), revised,
2014 WL 2838861 (2d Cir. June 23, 2014) (“Revised Opinion”),
which were bifurcated for later decision by our initial
opinion on the petition, see id., 2014 WL 2854878 (2d Cir.
2
June 23, 2014) (“First Rehearing Opinion”).1 The remaining
bifurcated issues concern the Government’s objections to the
ruling requiring disclosure of the title and description, but
not the content, of several items listed on a classified
Vaughn index. See Revised Opinion at 58-63;2 2014 WL 2838861,
at *18-19. That ruling resulted from the Appellants’
objections to the Appellees’ submission of so-called “Glomar”
and “no number, no list” responses to portions of the
Appellants’ FOIA requests.
The petition for rehearing, portions of which were
submitted ex parte and in camera, contends that several of the
listings in the Vaughn index, i.e., the titles and
descriptions of numbered listings of documents, that were
ordered to be disclosed contain information that is
“classified, protected by statute, and/or privileged.”
Petition 12. The petition refers specifically to three groups
of listings (250, 262, 263, 264, 265, and 271), (57-68, 70-74,
76-79, 83, 88-110, 116-119, and 123-130), and (67, 118, and
119), and also expresses uncertainty as to whether a fourth
1
That decision adjudicated issues concerning disclosure of
the OLC-DOD Memorandum.
2
Page references are cited to the typescript copy of the
Revised Opinion posted on the Court of Appeals website.
3
group of listings (244, 246, 248, and 256) has been ordered
disclosed.
Once a FOIA request has been made for documents, the
preparation of a Vaughn index is now an accepted method for
the Government to identify responsive documents and discharge
its obligation to assert any claimed FOIA exemptions to the
various documents withheld.3 See American Civil Liberties
Union v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013) (“With the
failure of the CIA’s broad Glomar response, the case must now
proceed to the filing of a Vaughn index or other description
of the kind of documents the Agency possesses, followed by
litigation regarding whether the exemptions apply to those
documents.”); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145-
48 (D.C. Cir. 2006); Keys v. U.S. Dep’t of Justice, 830 F.2d
3In some cases, preparation of a Vaughn index is not
required if the agency submits a valid Glomar response,
refusing to confirm or deny the existence of requested records
because acknowledging even the existence of certain records
would reveal information entitled to be protected. See Wilner
v. National Security Agency, 592 F.3d 60 (2d Cir. 2009)
(upholding Glomar response to FOIA request for records
obtained under the Terrorist Surveillance Program). A Vaughn
index is also not needed if the “factual nature” of all parts
of the requested documents is known and the only dispute
concerns the availability of FOIA exemptions. Vaughn v. Rosen,
484 F.2d 820, 824 (D.C. Cir. 1973) (citing EPA v. Mink, 410
U.S. 73, 92-93 (1973)).
4
337, 349-50 (D.C. Cir. 1987); National Treasury Employees
Union v. U.S. Customs Service, 802 F.2d 525, 527 (D.C. Cir.
1986); Lykins v. United States Dep’t of Justice, 725 F.2d
1455, 1463 (D.C. Cir. 1984); see also Goland v. CIA, 607 F.2d
339, 352 (D.C. Cir. 1978) (“[W]e do not retreat in the least
from our belief that an index is of great assistance to
requesters and courts in appropriate cases . . . .”).
The Vaughn index procedure was developed to avoid the
cumbersome alternative of routinely having a district court
examine numerous multi-page documents in camera to make
exemption rulings. See Vaughn v. Rosen, 484 F.2d 820, 825
(D.C. Cir. 1973).4 With the large number of documents listed
in the pending case, it would be unrealistic to expect the
District Court to make an in camera inspection of so many
documents to assure itself that the claimed exemptions apply.5
4
“In theory, it is possible that a trial court could
examine a document in sufficient depth to test the accuracy of
a government characterization, particularly where the
information is not extensive. But where the documents in
issue constitute hundreds or even thousands of pages, it is
unreasonable to expect a trial judge to do as thorough a job
of illumination and characterization as would a party
interested in the case.” Vaughn, 484 F.2d at 825.
5
Cf. Donovan v. FBI, 806 F.2d 55, 59 (2d Cir. 1986)
(approving in camera inspection of small number of documents),
abrogated on other grounds by U.S. Dep’t of Justice v.
Landano, 508 U.S. 165, 170 (1993) .
5
A Vaughn index typically lists the titles and
descriptions of the responsive documents that the Government
contends are exempt from disclosure. In some cases detailed
affidavits from agency officials may suffice to indicate that
requested documents are exempt from disclosure. See, e.g.,
Citizens for Responsibility and Ethics in Washington v. U.S.
Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014)
(“Agency affidavits sometimes take the form of a ‘Vaughn
index,’ but there is ‘no fixed rule’ establishing what such an
affidavit must look like.”) (citation omitted); Delaney,
Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C.
Cir. 1987) (“The materials provided by the agency may take any
form so long as they give the reviewing court a reasonable
basis to evaluate the claim of privilege.”). A so-called
“classical” Vaughn index, Keys, 830 F.2d at 349, like that in
the pending case, is one that lists titles and descriptions of
documents with cites to claimed FOIA exemptions for each
document listed. See, e.g., Judicial Watch, Inc. v. Dep’t of
Justice, 365 F.3d 1108, 1128-36 (D.C. Cir. 2004) (Appendix
displaying Vaughn index).
The titles and descriptions of documents listed in a
Vaughn index usually facilitate the task of asserting and
6
adjudicating the requester’s challenges to the Government’s
claims of exemption.6 “[T]he index gives the court and the
challenging party a measure of access without exposing the
withheld information,” Judicial Watch v. FDA, 449 F.3d at 146,
and “it enables the adversary system to operate by giving the
requester as much information as possible, on the basis of
which he can present his case to the trial court,” Keys, 830
F.2d at 349 (internal quotation marks and citation omitted).
Especially in cases such as the pending one, involving a
very large number of responsive documents, the index also
enables the FOIA requester, after seeing the titles and
descriptions of all listed documents, to inform the district
court which of those documents it wants disclosed. For
example, in this case the Vaughn index describes several
listed documents as email chains, and, because the Plaintiffs
have disclaimed any interest in disclosure of these documents,
6
However, a description that appears to place a document
within an exemption may not be conclusive. For example, in
American Civil Liberties Union v. U.S. Dep’t of Justice, 655
F.3d 1, 18 (D.C. Cir. 2011), the District of Columbia Circuit
considered Vaughn index descriptions that “suggest[ed]” that
the listed documents were “internal drafts containing
information that may be covered by the deliberative-process or
work-product privileges cognizable under FOIA Exemption 5.”
Nevertheless, the Court remanded for further inquiry. Id. at
19.
7
we excluded them from disclosure in our Revised Opinion.7
We have located no reported FOIA decision considering
whether the titles and descriptions of documents listed in a
“classical” Vaughn index are protected from disclosure. The
reason appears to be that it is unusual for the Government to
classify a Vaughn index containing only titles and
descriptions of withheld documents. “In the usual case, the
index is public and relatively specific in describing the
kinds of documents the agency is withholding.” American Civil
Liberties Union, 710 F.3d at 432 (emphasis added). “The court
is to require the agency to create as full a public record as
possible, concerning the nature of the documents and the
justification for nondisclosure.” Hayden v. National Security
Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979) (emphasis added).
Where, as here, the Government has elected to classify a
Vaughn index,8 it becomes especially important to disclose the
titles and descriptions of listed documents to facilitate the
adjudication of claimed exemptions, unless those materials
7
The identification of excluded email chains should have
included listing 105, which we now exclude from disclosure.
8
Despite the classification of the Vaughn index, those
titles and descriptions, not themselves subject to any FOIA
exemption, that we have ordered to be disclosed are obviously
segregable from the balance of the index.
8
themselves reveal sensitive information.
Before considering the Government’s request to exclude
from disclosure the titles and descriptions of specific
listings, in addition to those already excluded, we note the
Government’s more general argument that the Plaintiffs “did
not seek disclosure of OLC’s classified Vaughn index.”
Petition 12. But, as the petition acknowledges, the
Plaintiffs “argued that the [G]overnment should prepare and
produce a public Vaughn index,” Petition 12, and the
Plaintiffs can hardly be faulted for not requesting the
classified index of which they were unaware.
The Government also contends that our Revised Opinion
“has not identified the legal ground” for the disclosure we
ordered of some of the titles and descriptions of documents
listed on the Vaughn index.9 Petition 11. However, in
response to a FOIA request, the burden is on the Government to
9
The Petition incorrectly states that we have ordered
disclosure of “the index.” Petition 11. We have not. As the
Government appears to recognize, the dispute about the OLC’s
Vaughn index concerns whether titles and descriptions of some
specifically identified listings must be disclosed. Nor have
we ordered disclosure of Vaughn indices to be prepared by DOD
and CIA. We ordered these agencies to “submit Vaughn indices
to the District Court for in camera inspection and
determination of appropriate disclosure and appropriate
redaction.” Revised Opinion 65 (Conclusion ¶ 5), 2014 WL
2838861, at *20.
9
justify not disclosing withheld information. See Hayden, 608
F.2d at 1384.
We turn then to the specific listings that the Government
contends should not be disclosed, in addition to the 91
listings we excluded from disclosure in our Revised Opinion.
The Government opposes disclosure of the titles and
descriptions of listings in the first group because, it
contends, the content of the documents contain sensitive
information. Even if that is so, it is not necessarily a
reason to withhold disclosure of the titles and descriptions
of the documents, unless these titles and descriptions
themselves contain sensitive information. We agree with the
District of Columbia Circuit that “[w]hen the itemization and
justification are themselves sensitive, . . . to place them on
public record could damage security in precisely the way that
FOIA Exemption 1 is intended to prevent.” Hayden, 608 F. 2d at
1384. As to non-sensitive titles and descriptions, however,
disclosure is required, and the Plaintiffs can then inform the
District Court which documents it wants disclosed and which
claims of exemption it disputes. At that point the District
Court can evaluate all of the Government’s submissions,
adjudicate the Government’s claims for exemptions, and
10
determine which records warrant redactions or even withholding
in their entirety.
The petition characterizes the six listings of the first
group of documents as relating to a contemplated military
operation. Although the titles and descriptions do not
provide any information about such an operation, we will
accept the Government’s representation and exempt these titles
and descriptions from disclosure to avoid even the risk that
the fact of the military operation might be inferred.
The petition characterizes the 57 listings of the second
group of documents as describing information provided to OLC
in connection with OLC’s preparation of pre-decisional legal
advice, and then asserts that the content of information
provided to a lawyer is privileged. Petition 14. However,
with few exceptions, the titles and descriptions of these
listings contain no information at all. See, e.g., Brinton v.
United States Dep’t of State, 476 F. Supp. 535, 537-40 (D.D.C.
1979) (revealing non-informational titles of documents claimed
to be protected by attorney-client privilege). Although the
documents themselves, or at least portions of them,10 might be
10
See 5 U.S.C. § 552(b) (authorizing disclosure of
segregable portions of exempted document).
11
exempt from disclosure, there is no reason not to disclose the
non-informational titles and descriptions. Within the second
group, taking a generous view of what constitutes
“information,” we will add to the items already excluded from
disclosure11 the titles, but not the descriptions, of listings
57, 62, 66, 68, 70, 78, 79, 88, 92, 93, 97, 98, 100, 103, 104,
108, 123-28, and 130, and, on our own reexamination of the
Vaughn index, exclude from disclosure the titles, but not the
descriptions, of listings 69 and 80.
The Petition seeks protection for the listings of the
three documents in the third group of documents for reasons
indicated by the Government in a sealed portion of its
Petition. We deem those reasons sufficient to preclude
disclosure of the listings in the third group of documents.
We will therefore add to the items already excluded from
disclosure the titles and descriptions of listings 67, 118,
and 119.
Beyond the three groups of numbered listings, the
Government contends that the titles and descriptions of
11
The Revised Opinion had already excluded from
disclosure listings 92, 94, 101, 103-04, and 106-09, which are
within the 57 listings the Government now seeks to exclude
from disclosure. See Revised Opinion (Conclusion ¶ 2), 2014 WL
2838861, at *20.
12
“other” listings should not be disclosed. See Petition 14.
The Government has now had three opportunities to claim
justified exceptions to Vaughn index disclosures – first, in
its brief on the merits, second, in the pending petition for
rehearing, and third, in its response to the Court’s ex parte
letter of June 10, submitting for in camera review the Court’s
proposed Revised Opinion. It is far too late in the day to
fail to identify by specific numbers the “other” listings.
The Government’s claim that “space constraints” in the
rehearing petition preclude the requisite specificity, see
Petition 15, is without merit. Any additional numbers could
have been included in one or two lines of type in the blank
bottom one-third of the last page of the petition.
The Government expresses uncertainty as to whether the
titles and descriptions of another group of listings (244,
246, 248, and 256) were excluded from disclosure by our
Revised Opinion. Although the Revised Opinion expressly
excluded these listings from disclosure, see Revised Opinion
(Conclusion ¶ 2), 2014 WL 2838861, at *20, the reference to
these listings elsewhere in the Revised Opinion created some
doubt. We will therefore delete these listings from the text
of the Revised Opinion at page 62, lines 9-10.
13
Accordingly, with respect to the bifurcated issues
concerning the Vaughn index, we will grant the petition in
part by excluding from disclosure the titles and descriptions
of listings 67, 105, 118, 119, 250, 262-65, and 271, and the
titles of listings 57, 62, 66, 68, 69, 70, 78, 79, 80, 88, 92,
93, 97, 100, 103, 104, 108, 123-28, and 130. We will remand
the case to the District Court with directions, in addition to
those ordered in our Revised Opinion (Conclusion ¶ 3), 2014 WL
2838861, at *20, to order the Appellee U.S. Department of
Justice to file a public version of its Vaughn index in
compliance with our Revised Opinion at 64-65 (Conclusion ¶ 2
(identifying listings not required to be disclosed)), 2014 WL
2838861, at *20, and this opinion.12 We will amend our Revised
Opinion to delete listings 244, 246, 248, and 256 from page
62, lines 9-10. Apart from these rulings and those set forth
in our opinion of June 23, 2014, on the bifurcated issues
concerning the OLC-DOD Memorandum, the Petition for Rehearing
12
To avoid any misunderstanding, our combined rulings
mean that the filed Vaughn index will contain the titles and
descriptions of listings 5, 7-9, 50, 58-61, 63-65, 71, 73-77,
83, 89-91, 95, 96, 98, 99, 102, 110, 113, 116, 117, 120-22,
129, 131-243, and 269-270, and the descriptions of listings
57, 62, 66, 68, 69, 70, 78, 79, 88, 92, 93, 97, 100, 103, 104,
108, 123-28, and 130.
14
is DENIED, and the case is REMANDED.13
13
Any subsequent appeal following remand will be assigned
to this panel in the interests of judicial economy.
15